By Brennen Johnson
The fight is back on between Apple and the FBI over encryption technology. In June 2014, we first covered Apple’s move to encrypt iOS 8 phones that could stump even the FBI. But the FBI wasn’t happy about it. Last November, we covered how the FBI sought a court order to force Apple to develop a method for breaking the encryption on these phones with “brute force.” However, the phone in that case ran older software that Apple could simply unlock, iOS 5, so the FBI wasn’t able to use the case as a stepping-stone to win the fight over encryption.
But as of last Tuesday, February 16, the heat turned up when a Federal Magistrate Judge ordered Apple to provide the FBI with software and technical support to help crack an iPhone of one of the San Bernardino shooters. Authorities recovered the iOS 9 phone after a married couple, Rizwan Farook and Tashfeen Malik, shot and killed 14 people and wounded 22 others last December. After the judge issued the order, Apple CEO Tim Cook called the order a “dangerous precedent that threatens everyone’s civil liberties,” while other tech giants, like Google, stated their own support for Apple:
Even though the court issued an order, Apple has not backed down. At Apple’s request, the Court gave Apple an additional three-day extension, until February 26th, to reply. While Apple has since filed its reply, the world is still waiting to see if it changes the Court’s decision. For constitutional scholars and civil liberties enthusiasts, Apple’s reply is focused primarily on a free-speech argument. To handle the reply, Apple hired two prominent free-speech lawyers: Theodore Olsen, the winning mind behind the famous political-speech Supreme Court case Citizens United, and Theodore Boutrous, a frequent heavy-hitter for various media groups.
As explained in our previous posts, the FBI relies on a law from the late 1700s called the “All Writs Act,” a law that has allowed the government to force cooperation in handing over information for centuries. However, the U.S.’s free-speech jurisprudence has evolved since the early years of the nation, and we now live in a different era. Somewhat newer legal theories, like those prohibiting “compelled speech,” create serious questions regarding the Government’s ability to force companies like Apple to write certain code. One big complication is whether coding in this case constitutes “speech,” or in other words, if the code carries a “substantive message.” Back in 1999, in Bernstein v. United States, a panel of judges sitting for a Federal Court of Appeals ruled that the First Amendment protected the source code behind encryption software because it constitutes speech. However, that opinion was later withdrawn so that the full court could reconsider the issue. The case was never ultimately re-decided because a change in government regulations made the entire lawsuit moot.
A great challenge facing Apple is the set of facts that skew the case in favor of the FBI. Not only is the FBI requesting access to the cell phone used by a suspected terrorist responsible for a tragic mass killing, but the actual owners of the phone—Farook’s government employer—consented to the search. As stated by Michael Froomkin, a University of Miami law professor, “This is one of the worst set of facts possible for Apple. That’s why the government picked this case.”
If Apple is forced to help access the device, its global reputation could be damaged with those who value the security and privacy of Apple products. It would signal to the world that the iPhone’s encryption protections (not just it’s screen) can be cracked, and it would be Apple’s own team that made it possible.