Did the FBI try 1-2-3-4?

Photographer: Chris Goodney/Bloomberg

Apple v. FBI? Let Congress Decide

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The fight over whether Apple should write new software to unlock the iPhone used by the San Bernardino, California, killer may be poised to go to Congress -- and that’s the first good news I’ve heard about the confrontation. The case raises profound matters of public policy with constitutional, domestic and international ramifications. A magistrate judge working for the federal district court isn’t the right person to decide these issues, nor would higher courts be in a good position to make wise judgments on appeal. What we need here is a law -- one that reflects, to the extent possible, the legitimate competing values in play.

The reason the magistrate is even involved derives from the misleadingly simple nature of the problem. When a federal criminal investigation is under way, magistrates are deputed by federal district judges to issue warrants. In this instance, the Department of Justice asked the magistrate to issue an order to Apple to enable it to unlock Syed Rizwan Farook’s iPhone.

The magistrate, Sheri Pym, complied, ordering Apple to offer “reasonable technical assistance” in the form of a workaround that would “bypass or disable the auto-erase function”; allow the Federal Bureau of Investigation to submit passcodes to the phone electronically; and “ensure that … software running on the device will not purposefully introduce any additional delay between passcode attempts.”

Then the magistrate got technical about the technical assistance. She specified that Apple could give the FBI “a signed iPhone Software file, recovery bundle, or other Software Image File (‘SIF’) … that will load and run from Random Access Memory and will not modify the iOS on the actual phone.” The SIF would be “coded by Apple with a unique identifier of the phone” and “loaded via Device Firmware Upgrade (‘DFU’) mode.”

You don’t need to know what SIF or DFU mean to understand that the magistrate was directing Apple to code, if necessary, and provide the software to achieve the government’s goal of opening the iPhone.

Apple is thus correct when it says that it isn’t being ordered to use some existing, proprietary mechanism to open the phone. It’s being required to code a new system that could then be used in the future to open other iPhones subject to court order. And there’s no reason to think that only American court orders would apply. Every other country where Apple phones are used -- which is to say, everywhere on earth -- could then require Apple to comply and open phones under its own laws.

The standards for government access to secrets are pretty different in different countries. By complying, Apple would be assuring that it will be in the business of helping governments, including autocratic ones, access users’ phones and the data that’s kept on them.

There’s also the risk that Apple’s new code could leak. No matter how closely that secret might be guarded, it’s very possible that it could be stolen by others, including foreign governments interested in espionage.

Given these significant domestic and international implications, why didn’t the magistrate think twice? The answer is that magistrates are used to following standard legal protocols. When the government lawfully asks for a warrant with probable cause, the magistrate grants it. The government’s request was lawful here, measured by the ordinary yardstick of suspicion. So the magistrate gave the government what it wanted.

As written, the laws governing the granting of warrants don’t provide sufficient latitude for a court to weigh the dangers of requiring Apple to write new code against the corresponding gains for policing and national security. Sure, the federal district court or the court of appeals could construct such a balancing test and work through it. Even the U.S. Supreme Court might be capable of such an analysis.

However, courts that are pretty good at interpreting statutes or applying the Constitution generally aren’t very good at identifying and weighing major domestic and international public policy consequences. At stake is not only the FBI’s interest in justice but also users’ privacy interests and, yes, Apple’s business interests, which despite a denial from Chief Executive Officer Tim Cook are a legitimate concern.

In the U.S. system, Congress is supposed to make difficult public policy decisions. Before you laugh and dismiss Congress as incompetent, remember that it doesn’t have to be great at deciding contested policy questions. It just has to be better than the executive branch or the courts. Yes, lobbying Congress is easier than lobbying a court. But that’s part of the structure of democracy, or at least it’s supposed to be.

Congress should do more than hold hearings on this particular iPhone. It should take action to clarify the law and decide once and for all whether the American people want courts to be able to order private companies to code workarounds to give law enforcement access to private material. If our democracy can't decide that, we’re in serious trouble.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net