Privacy fight goes public in FBI dispute with Apple
Law enforcement had sought access to device used by California attacker
A legal fight is brewing with major privacy implications for cellphone users after a magistrate orders Apple to help the FBI hack into an iPhone used by the gunman in the San Bernardino mass shootings.
SAN FRANCISCO — Apple said Wednesday that it would oppose and challenge a federal court order to help the FBI unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.
On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the U.S. District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Farook’s co-workers at a holiday gathering.
‘Unprecedented step’
Pym ordered Apple to build special software that would essentially act as a skeleton key capable of unlocking the phone.
But hours later, in a statement by its chief executive, Tim Cook, Apple announced its refusal to comply. The move sets up a legal show down between the company, which says it is eager to protect the privacy of its customers, and law enforcement authorities, who say that new encryption technologies hamper their ability to prevent and solve crime.
In his statement, Cook called the court order an “unprecedented step” by the federal government. “We oppose this order, which has implications far beyond the legal case at hand,” he wrote.
Asked about Apple’s resistance, the Justice Department pointed to a statement by Eileen M. Decker, the U.S. attorney for the Central District of California: “We have made a solemn commitment to the victims and their families that we will leave no stone unturned as we gather as much information and evidence as possible. These victims and families deserve nothing less.”
The FBI said that its experts had been unable to access data on Farook’s iPhone, and that only Apple could bypass its security features. FBI experts have said they risk losing the data permanently after 10 failed attempts to enter the password because of the phone’s security features.
The Justice Department had secured a search warrant for the phone, owned by Farook’s former employer, the San Bernardino County Department of Public Health, which consented to the search.
Because Apple declined to voluntarily provide, in essence, the “keys” to its encryption technology, federal prosecutors said they saw little choice but to get a judge to compel Apple’s assistance.
Creating a ‘back door’
Cook said the order would amount to creating a “back door” to bypass Apple’s strong encryption standards — “something we simply do not have, and something we consider too dangerous to create.”
In 2014, Apple and Google — whose operating systems are used in 96 percent of smart phones worldwide — announced that they had re-engineered their software with “full disk” encryption, and could no longer unlock their own products as a result.
That setup a confrontation with police and prosecutors, who want the companies to build, in essence, a master key that can be used to get around the encryption. The technology companies say that creating such a key would have disastrous consequences for privacy.
“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a back door ,” Cook wrote.
An Apple spokeswoman declined to elaborate on the statement, but the company’s most likely next step is to file an appeal.
The legal issues are complicated. They involve statutory interpretation, rather than constitu- tional rights, and they could end up before the Supreme Court.
As Apple noted, the FBI, instead of asking Congress to pass legislation resolving the encryption fight, has proposed what appears to be a novel reading of the All Writs Act of 1789.
The law lets judges “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
The government says the law gives broad latitude to judges to require “third parties” to execute court orders. It has cited, among other cases, a 1977 ruling requiring phone companies to help set up a pen register, a device that records all numbers called from a particular phone line.
Apple, in turn, argues that the scope of the act has strict limits. In 2005, a federal magistrate judge rejected the argument that the law could be used to comp el a telecommunications provider to allow real-time tracking of a cellphone without a search warrant.