Russell Hebets March 8, 2016

Last month a federal magistrate judge in California ordered Apple to bypass the security protocols on an iPhone 5 that belonged to one of the San Bernardino shooters.  This public order ushered in what has become a national spectacle, pitting the FBI and many Americans against Apple and Privacy proponents.  Apple has been steadfast in its refusal to comply with the order, while the FBI has reiterated that the request is pursuant to an overwhelming public and national safety concern.  Here’s how the arguments break down.   

This is a Legislative Issue   

In order to require Apple to circumvent the encryption on the iPhone, the federal court relied on the All Writs Act of 1789.  Yes, you read that correctly, 1789.  This was made law 50 years before the telegraph was invented, and almost 100 years before Alexander Graham Bell made the first phone call.  Clearly this act did not envision the current state of technology.  Rather than rely on a 200 year old legal authority, this decision should be made by the legislature after full consideration of all of the attendant issues.    

Privacy is Paramount  

The government argues that they are only seeking to unlock this single phone.  Apple has repeatedly argued that if they are forced to unlock the iPhone at issue in this case, they will be forced to unlock every iPhone in every case.  There is some credence to this argument, as it is not a far reach to envision China, Russia, or any other county who has an interest in suppressing dissident views in their society asking Apple to do the same once a precedent of complying with this request is set.  Because this is a judicial order, no legislative standard for this request has been established.  Apple potentially would be required to comply anytime any court in America or abroad issued an order.  

If Apple were required to hack into any iPhone, a huge host of other issues would arise.  This would have a chilling effect on iPhone consumers worldwide, with more people worried about the security of their personal information.  People’s very lives would be at risk of exposure to totalitarian regimes.  Everyday users would be at a much higher risk of personal information being exposed to bad actors.  As tech giants from Google to Airbnb have opined, allowing this judicial order to stand would start us down a slippery slope with no end in sight.   

Conscripted Service   

The government is not simply asking Apple to press an “unlock” button to allow access to the phone.  They are asking apple to write new, original, programming code which will unlock the phone.  (Incidentally, this program would theoretically be effective at unlocking any iPhone 5, creating potential for any party with access to the code to access sensitive data.)  This is fundamentally different from your typical warrant case.  Traditionally, a judge finds that probable cause exists for an area to be searched, and law enforcement executed the warrant and searches the area.  It is worth noting here that the Supreme Court has recently found that a cell phone does enjoy the protections of a warrant requirement in Riley v. California.  The Apple case is fundamentally different from traditional warrants.  It would be as if Masterlock created a new padlock that the police couldn’t break, then they told Masterlock that they needed to forge a new master key which the government could then use to unlock their new unbreakable lock.  Similarly, this is requiring Apple to expend significant expense and deliberate affirmative action in order to circumvent their own failsafe.    

Inability to Access   

Government proponents believe that the warrant procedure outlined above and the government’s inability to crack into the iPhone is exactly why Apple should be required to comply with the order.  If the government is unable to access something that it has a valid warrant to search, the warrant becomes useless.  They argue that companies should not be allowed to invalidate warrants which are a bedrock of our criminal justice system as Americans.

National Security   

The phone in question was used by a shooter who planned and perpetrated a horrific act of terrorism, without any apparent notice by law enforcement.  The government speculates that the phone could hold information on other attacks or other terror cells in America actively planning attacks.  Speculation on the possible contents of the phone range far and wide, with San Bernardino district attorney Michael Ramos stating “The seized iPhone may contain evidence that can only be found on the seized phone that it was used as a weapon to introduce a lying dormant cyber pathogen that endangers San Bernardino's infrastructure.”  Recent polls have indicated that a majority of Americans support the FBI’s position. 

Where Does This Leave Us? 

This week dozens of tech companies filed amicus briefs in support of Apple’s position.  The government got their own briefs from families of the slain San Bernardino victims as well as a handful of law enforcement groups.  The deadline for briefs set is this Thursday.  We will closely watch this develop past that deadline, but for now Judge Sheri Pym will have no lack of reading materials.