- U.S. is leaning on law from 1789 Tim Cook thinks he can beat
- `It’s not as if Apple has this key lying around,' lawyer says
Apple Inc. has a message for the government: You can’t make us give you what we don’t have.
Confronting U.S. investigators who want it to help them gain access to a terrorist’s iPhone, Apple is arguing that it can’t be compelled to create a key to the encryption of its devices. The U.S., invoking a catch-all law used 200 years ago to make people provide supplies in the war against the British, says it just wants quick access to a single locked device used by Syed Rizwan Farook in last year’s massacre in San Bernardino, California.
Apple has five business days to respond to a magistrate’s order issued on Tuesday. If it loses, it can appeal to a district judge, an appellate court and even the U.S. Supreme Court. It is hiring Gibson Dunn & Crutcher LLP litigator Ted Olson, according to a person familiar with the matter. Olson, whose wife died in the 2001 terror attacks, counts among his courtroom victories Bush v. Gore and overthrowing bans on same-sex marriage.
And the Cupertino, California, company has a powerful case, lawyers and other experts said.
The Communications Assistance for Law Enforcement Act of 1994, which permits a court to order a design change, has been applied to telecommunications carriers but never to the new generation of technology companies including Apple, Google and Microsoft Corp. As for previous requests by government to unlock iPhones, they have related to models with older operating systems that didn’t automatically encrypt information and could be broken into individually. Tuesday’s order forces Apple to create a new technology that the device would read as a legitimate iPhone function.
What About Iran?
“It’s not as if Apple has this key lying around,” said Alvaro Bedoya, executive director of the Center on Privacy and Technology at the Georgetown University Law Center. Instead, the company is “being forced to create a weakness” in its system, setting a dangerous precedent, he said.
Apple, which reaps most of its sales outside the U.S., is worried about the impact of the order abroad, according to a person familiar with the company’s thinking. Countries with fewer civil protections than the U.S. or Europe could lean on the company to provide similar tools.
“It won’t just be followed by the U.S. and its allies,” Bedoya said. “It will be followed by the Iranian government, the Chinese government, by any number of governments that have very different records on civil liberties and dissent.”
Tuesday’s court order doesn’t tell Apple to unlock the phone, or even to help the FBI unlock the phone. Instead, it demands that Apple provide the FBI with software that would disable the operating system’s security feature that auto-erases the phone after successive, incorrect attempts to enter the pass code.
“The judge’s order and our request in this case do not require Apple to redesign its products, to disable encryption or to open content on the phone,” Emily Pierce, a spokeswoman for the Department of Justice, said in an e-mail. “In addition, the judge’s order and our request were narrowly tailored to this particular phone.”
Apple CEO Tim Cook in a blog post Tuesday framed it as a “chilling” attack on civil liberties. The company may make arguments on First Amendment grounds, given that courts have held that computer code qualifies as speech, according to a person familiar with the matter.
The standoff dramatically escalates the government’s fight with the tech industry over cooperation against terrorism and will help draw the broader battle lines over what the U.S. can and can’t make private industry do. Like Google, Apple ventured deeper into encryption for its mobile operating systems amid privacy concerns after the extent of U.S. data collection practices was exposed in documents leaked by Edward Snowden. Indeed, the government encouraged it to stiffen its protections against hacking and snooping.
Apple, likely to be joined in its resistance by other tech companies, has a good chance of winning in the end, said Jeffrey Vagle, executive director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School.
“What they’re asking for is for Apple to create an update” that would allow the government to disable a password limit, he said. While the law may allow a court to compel compliance with a search warrant, as the Supreme Court previously ruled, it cannot “compel a manufacturer to write new code,” he said.
Apple’s board, which includes Disney CEO Bob Iger and former Vice President Al Gore, has supported the company in fighting against providing governments with backdoor access to its devices, though it’s unclear how they view the current debate.
On the U.S. Side
Keenly aware of the legal and political challenges it faces, the Justice Department has crafted what it says is a narrow request that wouldn’t compromise the security of Apple’s software. The U.S. said its demand of the company complies with All Writs Act, part of a law from 1789, which empowers courts to issue orders enforcing their rulings. The government is relying on a 1977 U.S. Supreme Court case outlining what prosecutors can compel companies to do in response to search warrants.
“Modifying an operating system -- writing software code -- is not an unreasonable burden for a company that writes software code as part of its regular business,” the Justice Department said in its filing Tuesday.
The government isn’t pursuing the case to seek a precedent that grants permanent access to encrypted smartphone information, according to an Obama administration official who requested anonymity to discuss the matter. Investigators just want to know who Farook contacted before the attack in San Bernardino.
Manhattan District Attorney Cyrus Vance Jr., who has been outspoken about the need for cooperation from tech companies while also proposing a compromise he says should satisfy privacy advocates, said Congress needs to ensure lawful access to smartphone evidence to clear up the debate.
Tuesday’s order “recognizes that decisions about who can access key evidence in criminal investigations should be made by courts and legislatures -- not Apple and Google,” Vance said in an e-mail.
‘Digging Their Heels In’
Olson will work with Marc Zwillinger, Apple’s lawyer in a similar case in Brooklyn, New York. In the Brooklyn case, a judge is weighing whether to force the company to help unlock a phone seized in a drug investigation. Apple said it wasn’t sure it could extract the data and disputed whether the government could demand it.
“Forcing Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand,” lawyers for the company said in a court filing in October.
A judge could theoretically hold Apple -- or Cook -- in contempt if the company refuses to comply with a court order at the end of the San Bernardino case, though that’s unlikely, Vagle said.
“They’re digging their heels in,” he said of Apple. “They’re not going to go quietly on this one.”