By: Nicolas Gutierrez
Member, American Journal of Trial Advocacy
While most people are focused on ongoing political feuds between hopeful presidential nominees, there is another feud that has the makings of a Muhammed Ali and Joe Frazier heavyweight battle. In one corner, we have one of the most recognizable companies in the world, Apple. In the other corner, we have the United States’ premier law enforcement agency, the FBI. After the San Bernardino attack in December 2015, these two entities became embroiled in a significant dispute over one of the attacker’s phones that was recovered by the FBI.
To understand where both sides stand, a little background on the events that occurred post-San Bernardino attack is necessary. Once the San Bernardino attack occurred, law enforcement were able to obtain one of Syed Farook’s phones, an iPhone 5C. However, Farook’s iPhone was passcode protected, thereby not allowing the FBI access to the contents of the iPhone. The FBI was unable to get into the phone because Apple’s security measures automatically locks out the person trying to gain access after a certain amount of incorrect passcode guesses.
You may be asking, “Why doesn’t Apple just take the phone and ‘unlock’ the phone for the FBI?” With older iPhone operating systems, Apple has apparently done so for the FBI many times. However in an attempt to provide a more secure product to their consumers, Apple changed the operating system of newer iPhones to disallow Apple from being able to bypass the user’s personal passcode. In essence, Apple made the encryption of iPhones much harder to crack. Yet, the FBI is asking Apple to crack this encryption by writing an operating system that would “bypass security protections on the iPhone lock screen” and allow for the input of passcodes electronically. Tim Cook, the CEO of Apple, was quick to denounce the request of the FBI in an open letter written on Feb. 16, 2016. Even though the FBI had a judge order Apple to assist the FBI break into Farook’s phone, Apple steadfastly refused.
The Case for the FBI
After Apple’s refusal in assisting, the FBI argues that the All Writs Act of 1789 (AWA) allows a court to compel Apple to create the software desired by the FBI. The AWA was an act passed during the beginning years of the United States primarily to give courts the ability to issue “necessary and appropriate” orders that the courts weren’t explicitly granted under the Constitution. Think of the AWA as an extension of the Necessary and Proper Clause, but reserved for use of the courts. For a court to grant an AWA order, a court must find: 1) the company against whom the order is being filed is related and not “removed” from the case; 2) no unreasonable burden placed on the company; and 3) company’s assistance is necessary. To see the FBI’s argument in its entirety, read their brief in response to Tim Cook’s open letter.
The Case for Apple
Apple’s main defense is combating the FBI’s All Writs Act argument. Apple argues that the AWA cannot be applied because there are other existing laws, such as Communications Assistance for Law Enforcement Act (CALEA), that cover this particular scenario. Apple continues its argument by stating that if Congress wanted to broaden the ability of the government to compel electronic communication service providers, then Congress would’ve enacted a law doing such. However, Congress determined that the government cannot impose on electronic communication service providers, which Apple argues Apple should be considered as, any specific design or software configuration. Because of CALEA, Apple does not think the government can compel Apple to design its iOS or configure the iOS software in a manner that Apple does not want.
An additional argument presented by Apple to the court is the idea that the code that is written for Apple’s iOS should be considered as speech, and is therefore protected by the First Amendment. Apple cites several cases where computer code has been considered a form of speech and such compelling speech is protected by the First Amendment. Considering Apple’s code as a form of speech is certainly an interesting and innovative argument, but is likely to not be considered by the court, as the court will probably focus on the AWA argument detailed above. To see Apple’s argument in its entirety, read their brief here.
So, What’s Next?
The fight between Apple and the FBI seems destined to be a long and litigious battle, and one that could potentially make it to the Supreme Court. The tech community, including Google, Facebook, John McAfee and more, has come out in full support of Apple, while many other influential people, including President Obama, have come out in support of the FBI. Apple seems to be winning the early rounds in this heavyweight fight, as a judge in New York decided in an unrelated case that the FBI could not compel Apple to unlock an iPhone seized in a drug case. However, only time will tell who delivers the knockout punch, and leave the (legal) ring proclaiming “I AM THE GREATEST!”