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The government’s attempt to force Apple to bypass iPhone security features in the San Bernardino terror investigation raises fundamental questions about data privacy in the digital age, experts tell NBC News.
Chief among them: Should U.S. companies be able to help Americans permanently shield their personal information from the government, even when it includes evidence of a crime?
“From the government’s perspective, once they have the right piece of paper — be it a court order, a warrant or a subpoena — every single bit of data should be available to them,” said Christopher Soghoian, principal technologist for the American Civil Liberties Union.
“The privacy community believes there are communications the government should never get, regardless of what piece of paper they use.”
At issue is whether the FBI can make Apple help it crack an iPhone 5c assigned to Syed Rizwan Farook, a county health inspector who with his wife carried out the December terror attack in San Bernardino, Calif., which left 14 dead and 22 wounded. Federal prosecutors have filed motions in Los Angeles to compel the computer giant to unlock the phone, and the two sides are scheduled for a showdown in a federal courtroom next month.
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Apple once said that under its newest operating systems, it couldn’t retrieve data from a customer phone without the user’s password. But the government says it has found a way for Apple to help make such data retrieval possible, and is demanding that it do so under a 1789 law, the All Writs Act — a kind of catch-all authority for federal courts to enforce their wishes.
A 1977 Supreme Court ruling in United States v. New York Telephone found that the All Writs Act required a telephone company to install a device that kept track of calls made and received. “Citizens have a duty to assist in enforcement of the laws,” the court said.
But the court also said there were limits to what a company could be made to do, and Apple says the government is being unreasonable by asking it to bypass iPhone security measures. The case may turn on this question, experts say.
If the FBI wins, other authorities in the U.S. and around the world will then make similar demands, forcing Apple to abandon its public promise of absolute customer privacy, at least until it can design an operating system that is truly impenetrable without the user’s password.
Apple CEO Tim Cook says what’s at stake is “the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone’s civil liberties.”
Court documents unsealed Wednesday show that Apple is objecting to 12 other orders under the All Writs Act to extract iPhone data. But the company does turn over data when it can. Apple says it received requests from law enforcement for data on 9,717 devices in the U.S. alone from January to July of last year, and provided some data in 81 percent of the cases.
To law enforcement officials, a world of phones with unbreakable encryption is a world of crimes unsolved and terror plots undetected. They picked the emotional San Bernardino case as the venue to publicly fight this long-simmering dispute, and a Pew poll shows a slight majority of Americans believe the FBI should have access to that phone (though an on-line Reuters poll got a different result). American officials argue that Apple is acting not out of principles but in a quest for profits, marketing privacy to a world grown skeptical of government snooping.
“How is not solving a murder, or not finding the message that might stop the next terrorist attack, protecting anyone?,” asked Bill Bratton, the New York City police chief, this week in a New York Times op-ed co-written with former FBI official John Miller.
At the government’s request, a federal magistrate judge in California has ordered Apple to design and run a special operating system on the phone that would bypass a security feature. Specifically, Apple would have to disable the instructions that wipe the phone after 10 unsuccessful attempts to guess the password. That would allow the FBI to use a supercomputer to attempt to crack Farook’s password.
U.S. officials say they would not have access to Apple’s security bypass method, and they would need a separate warrant each time they asked Apple to do something similar on another phone. But there is a growing list of cases in which authorities are lining up to make similar demands on Apple if the government prevails.
Apple accuses the government of seeking a “backdoor” in Apple’s encryption regime that would ultimately compromise security on its products worldwide.
Many prominent legal experts say the government is on solid ground in terms of the Constitution’s Fourth Amendment, which protects against unreasonable search and seizure. The phone was owned by the county, which has given the government permission to search it. Farook is dead, so has no privacy rights. And the government has a search warrant approved by a judge.
In that sense, the data on the phone is no different than a locked diary in a suspect’s home.
Apple may have constitutional defenses, however, against the affirmative steps the government is demanding that it take to bypass its own security features. Those steps include “digitally signing” the special override in a way that makes it look like a genuine Apple OS update, when it arguably isn’t. If the government is allowed to do that, what is to stop it from requiring Apple or Google to push spyware to any individual’s phone, Soghoian wonders.
Some experts see a First Amendment, free speech issue. Case law has held that computer code is a form of expression.
“Can you force Apple to design their product in a particular way and that also could have a speech component?” wondered Ryan Calo, an assistant professor at the University of Washington School of Law. “If what’s being compelled here is a change to the way we speak, then it’s not the company and its bits and bytes at issue — it’s yours and mine.”
To put it another way, “This is a case about whether a court has the power to order an American company to speak against its will in a way that is fundamentally against its interest,” said Nate Cardozo, a staff attorney for the Electronic Frontier Foundation.
Others see a potential claim under the Fifth Amendment, which prohibits the government from depriving liberty without due process of law. Alex Abdo, a lawyer for the ACLU, argues that the government is going too far by compelling Apple to act as an agent for the state.
“When you conscript people into government service, that is an imposition on their Fifth Amendment rights,” Abdo said. “There is a limit on the nature of the assistance the government can compel.”
There is also a Fifth Amendment argument that the government’s order amounts to an “illegal taking,” from Apple, because it has the potential to deeply harm Apple’s worldwide reputation and cost it large amounts of revenue.
Many experts dismiss that claim, arguing that companies are required all the time to cooperate with law enforcement in ways that could damage their reputations.
In fact, many experts doubt that Apple can win under existing law. Michael Dorf, a constitutional law expert at Cornell, said that while he is sympathetic to the public policy questions Apple is raising, he believes the government will prevail. Other experts, however, expect Apple to prevail on appeal in the San Francisco-based 9th Circuit Court of Appeals, which many consider the nation’s most liberal circuit court.
That is why Congress may have to weigh in, said Bruce Ackerman, a constitutional scholar and the Sterling Professor of Law and Political Science at Yale. He predicted that the Apple case or one like it would make it to the Supreme Court.
“That will buy us some time,” he said. “The question is, will Congress and the next president and the courts and the American people actually engage in a serious argument about the limits of the national security state.”