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Since the war on terrorism began in 2001, the federal government’s surveillance capabilities have come under scrutiny by civil libertarians, groups such as the American Civil Liberties Union (ACLU), and the national media. On the one hand, advocates of increased surveillance argue that it is necessary to keep Americans safe, while the other side counters that the loss of civil liberties for security is a dangerous precedent that could gradually erode all freedoms. Recently, the Federal Bureau of Investigation (FBI) is attempting to make Apple break its iOS9 operating system so that it can unlock the phone of Syed Farook, one of the two individuals that killed fourteen people in the San Bernardino shootings last year. Federal authorities believe that the phone would reveal Farook’s motivations for the attack and give them a detailed profile of how much contact Farook was having with the Islamic State, but these are mere guesses as to the phone’s contents. Apple has thus far refused to cooperate, arguing that the government has no legal authority to make it to crack its own software. It will likely take years for federal courts to adjudicate this case, but it could have significant ramifications for technology firms in the United States and elsewhere. As such, extempers should be prepared to discuss the implications of this ongoing legal struggle as it will be fodder for questions in technology, terrorism, and constitutional issues rounds.
This topic brief will explain the FBI’s motivations for wanting Apple to break into Farook’s iPhone, why Apple has thus far refused to cooperate, and assess what some of the implications of the court case could be.
Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.
The Federal Bureau of Investigation’s Stance
Last December, Syed Rizwan Farook and Tashfeen Malik killed fourteen people at the Inland Regional Center in San Bernardino, California. The attack was quickly linked to terrorism after it was found that Malik supported the Islamic State on Facebook, but there are still significant questions about how close the two attackers were to the terrorist organization and if there was a third individual involved. National Public Radio reports on February 19 that the FBI has gained access to Farook’s iCloud account, but this account was not updated in the month and a half before the San Bernardino attacks. Investigators wonder if his iPhone has more sensitive details, especially iMessages and WhatsApp messages, but to do so they have to get around the passcode protections on his iPhone. This is a sensitive matter because if an individual enters ten incorrect passcodes into the iPhone in question it will erase the phone’s data. As a result, they want Apple to construct software that would enable it to enter unlimited passcodes in order to crack it. This technology does not yet exist, but the FBI is seeking a court order to make Apple do so.
According to the FBI, its request to Apple is reasonable. The Hill notes on March 13 that the FBI has couched its request for Farook’s specific iPhone, not iPhones generally, and it explains that Apple has complied in the past when federal authorities want information in criminal cases. The FBI has argued that if Farook used a four-digit passcode that it could use a “brute force” method of entering multiple combinations into the phone and crack it in less than an hour. The Washington Post explains on February 18 that this is due to the fact that a four-digit password only creates 10,000 possibilities. However, using this “brute force” method means that the FBI needs software to do it. Could the FBI develop its own? That is a possibility and The Washington Post goes on to say that foreign governments have probably worked to crack the iPhone already such as China. Nevertheless, it appears as if the FBI would rather have Apple produce the necessary software and it wants a legal order to force them to do so.
One of the challenges for the FBI and other global law enforcement agencies is that encryption technology is increasing. Tech firms such as Apple and messaging services such as WhatsApp, Kik, Telegram, Wire, and Snapchat are moving to greater encryption to reach an audience that wishes to shields its information from government and the private sector. This makes sense when it comes to consumer privacy, but there is a grey area when it comes to criminals. For example, if a kidnapping ring were communicating through encrypted messaging services, how could law enforcement gain access to this material to save lives? Bloomberg explains on March 10 that messaging applications have over a billion users worldwide and this number is continuing to grow as governments struggle to find effective ways to regulate them. The FBI feels that it is behind this encryption trend and wants greater federal powers to obtain this information. MarketWatch reveals on March 12 that the FBI has requested that Congress double its budget for forensic and encryption-cracking tools to $70 million, a clear sign that it feels overwhelmed by the growing technology challenges of the modern age.
When it comes to legal matters, the federal government has faced some hurdles pressing technology companies to comply with its orders. Opposition has grown in recent years after former National Security Agency (NSA) subcontractor Edward Snowden leaked information about federal surveillance of telecommunications networks several years ago. In the eyes of government officials debates over whether federal officials should view information that could thwart crimes is a privacy versus security debate, with security trumping privacy rights in situations that threaten national security. National Public Radio reveals that the Department of Justice successfully forced a phone-maker to unlock a password-protected device in 2014, but what makes that situation different than what the FBI is trying to do in the Apple case is that that instance did not require new software. The Guardian explains on February 29 that a recent FBI request to force Apple to open the iPhone of a known drug dealer was rejected in federal court, with the presiding judge ruling that the 1789 All Writs Act (AWA) – legislation that authorizes federal courts to force companies to comply in situations not currently required by law – did not allow the government to force a phone-maker, in this case Apple, to manipulate its products. This sets a difficult precedent for the government as it seeks to force Apple to comply, although a federal court last month ordered Apple to assist the FBI’s investigation (Apple is appealing that ruling).
Apple’s Stance on Working With the FBI
Apple has vehemently rejected helping the FBI, arguing that breaking its own software is not required by law and might even threaten its market position. Tech Crunch explains on March 13 that if Apple were to follow the federal government’s request it would have to build a backdoor into its mobile operating system iOS (or GovOS) to access data. According to Apple’s view, doing this would enable the federal government to engage in “compelled creation of intellectual property,” something that Apple’s attorneys and corporate leaders argue is not in keeping with either the Communications Assistance for Law Enforcement Act (CALEA) or the AWA. While CALEA applies to telecommunications firms – requiring them to build a backdoor for the government – Apple is deemed as an “information service” and does not appear to fall under the law’s provisions. Similarly, the AWA may not apply to Apple because the FBI has not been explicitly empowered to demand that a company create new software to breach one of its own devices. Apple’s attorneys argue that interpreting the AWA differently would violate the separation of powers between Congress and the judiciary as the judiciary would be making new law without explicit authority.
In terms of privacy, Apple has advocated that its encryption is demanded by consumers and that it would have its market position eroded by cooperating with the FBI’s request. Apple’s corporate leaders say that recent iPhone designs that erase data after ten incorrect passcodes was an intentional design that make cracking the phone an impossibility. The Washington Post highlights that although the FBI is focused on the negative aspects of encryption, there are good reasons for consumers to have it. For example, encrypted data allow people to not have bank passwords or other personal data compromised if they lose their device and/or it is stolen by criminals. The International Business Times explains on March 12 that if Apple were to weaken the encryption of its devices then it could lose customers to international services. To be sure, there are some competitors that have criticized Apple’s position such as Blackberry, which Foreign Affairs explains on March 7 has said that it will work with law enforcement and that its “privacy commitment does not extend to criminals.” Still, according to The Boston Globe on March 4, Apple finds the government’s position ridiculous as they are being asked to destroy their own software, which they spent precious resources developing and marketing.
Apple has warned that if it were forced to crack the iPhone then it would compromise more than just Farook’s iPhone. They argue that the government’s position of only wanting access to Farook’s phone opens a Pandora’s box of problems since the technology used to bypass the security on Farook’s device could be used for the same model in other cases. The Hill adds that Apple has warned that if the government can bypass security on an iPhone that it could then find ways to turn on a user’s iPhone camera or microphone, allowing the FBI to catch tax evaders or violators of immigration laws. The government refutes these positions, saying that Apple is engaging in hostile rhetoric as a “marketing ploy,” but some of the concerns Apple raises are valid. After all, it is naïve to assume that after it builds new software to crack a product that this software will simply disappear. Instead, its creation will circulate in the technology community which could allow hackers to penetrate the iPhone’s operating system and make it less secure.
The Implications of the Apple-FBI Debate
Opposing judicial rulings on the scope of federal law in relation to what the FBI is demanding of Apple seem to indicate that this will be a lengthy legal battle. The debate will play out in the court of public opinion as well and other technology firms, including some of Apple’s competitors, have joined it in opposing the FBI’s request. USA Today reveals on March 3 that Google, Twitter, AT&T, and Facebook have sided with Apple, saying that their products could also be affected by the ruling, which could go far beyond mobile phones and after other devices such as smart televisions. When former Microsoft CEO Bill Gates appeared to take a moderate position on the debate last week he was blasted by technology blogs, forcing him to later come out and say that the government needs to provide greater legal clarity. Newsweek reports on March 8 that Great Britain and France are having similar discussions about encryption and the cooperation between technology firms and the government, so it makes sense for the United States to start leading the way with some common sense legislation. Recognizing the political element of the struggle, Apple appears to be pressing forward with a public relations strategy, calling upon Eddie Cue, its senior vice president who is also of Latino descent, to make the case on Univision that Latinos should take a significant interest in Apple’s ongoing legal battles. The Los Angeles Times reports on March 10 that it is not a coincidence that Cue warned viewers about the government’s ability to use a backdoor to enforce immigration laws, possibly looking to rally Latino support and make Democratic politicians, many of whom represent Latino-heavy districts on the West Coast or Southwest, to rethink their current stance on the issue. The Los Angeles Times goes on to explain that the company could also find support among African Americans, conservatives, and libertarians, all of whom have grown very distrustful of heavy handed government action in recent years. Polls currently show that Americans are divided on the issue, with The Christian Science Monitor noting on March 9 that one poll shows that only 38% of Americans support Apple’s position, with 51% siding with the FBI. However, another poll finds that 46% of Americans support Apple and 35% support the FBI. Since the entire judicial battle could hinge upon future federal legislation overseeing “information services” such as Apple, it should come as no surprise that the court of public opinion may eventually decide the case and its long-term implications.
Extempers should be cognoscente of the precedent that an Apple loss could have for national security and technology firms. As previously noted, technology firms fear that if Apple loses that they could then be forced to undermine encryption on their own devices. Some have questioned whether the FBI really needs Apple’s help in cracking the device. Snowden has told reporters that the FBI only wants Apple to unlock its device “out of convenience” rather than necessity, and the American Civil Liberties Union has charged that the FBI is only forcing Apple to go to court in an attempt to “weaken the ecosystem” of smartphone technology. And it is not just tech firms that may have cause to be worried about Apple’s defeat. Tech Crunch imagines a scenario where the Department of Energy is interested in the research being conducted a public university and it uses the AWA to demand those resources be “donated” to the federal government. What could clear up the entire dispute is if Congress set new rules that technology firms had to follow when it came to law enforcement access on encrypted devices, which would amount to reclassifying Apple and similar firms as telecommunications companies (or at least treating them the same way with regards to regulations). However, there is no sign that Congress is moving fast in writing these new regulations, especially in an election cycle. And The International Business Times highlights how the fight Apple is having is just one of many in the technology industry right now. For example, Google is fighting with European regulators over “right to be forgotten” regulations pertaining to the scope of its Internet searches. The Guardian explains that if courts agree that the AWA allows the FBI to force Apple to break its software that would be tantamount to government overreach, but the question is whether Americans are still willing to sacrifice some personal liberty for national security.
One of the more interesting implications comes from the international arena. Foreign Affairs places the Apple dispute in a global context, arguing that foreign intelligence and law enforcement agencies are carefully watching how the case proceeds. It explains that countries have recently gone after technology companies that refuse to work with its investigative units, with Brazil jailing a Facebook vice president until the company agreed to release data for a criminal investigation and the French Parliament recently approving a legislative amendment that would impose prison sentences and fines on companies that refused to cooperate in terrorism investigations. Regimes that do not allow political dissent such as China or Russia are likely watching the case as well as they would love to compel Apple to break iPhones, or find ways to obtain the means to do so, in an attempt to weaken opposition groups. In fact, some fear that if Apple loses that such activists would be put in grave danger as encryption is one of the few ways that they can operate in such countries at the present time. Thus, while the FBI may win a big victory against Apple in the long run it may actually hurt America’s foreign policy interests by making it harder for democratic movements to operate abroad.
Due to the significant political and legal questions surrounding this case, extempers should continue to follow it over the next several months (and possibly years). Both sides make compelling arguments for their position, but it comes down to whether federal judges see the FBI’s request under the AWA as too broad and prone to abuse. If so, civil liberties will be guarded, but at the risk of empowering terrorists and criminals over the long-term.