A legal battle is now raging between Apple Inc. and the FBI. Apple is right. The FBI is wrong. Here’s why.
On Dec. 2 in San Bernardino, California, Syed Farook, with his wife, Tashfeen Malik, committed a horrifying mass murder, a terrorist attack. He killed 14 people and seriously wounded 22 more.
Between the time of the killings and his death four hours later in a shootout with the police, Farook smashed his two personal cell phones into smithereens so that nothing could be recovered from them. His third cell phone, issued by his employer, he left untouched. That cell phone now occupies the epicenter of the legal struggle.
The FBI asserts that it needs access to that phone for investigative purposes. It makes this assertion notwithstanding the improbability that Farook used his county government-issued work phone, and not one of his private ones, for anything related to his attack. The FBI demands access to the phone notwithstanding that all the device’s location data, calls, texts, and web searches are stored by the carrier and therefore readily available to law enforcement.
The FBI, which has confessed to inadvertently locking Farook’s phone after seizing it, nonetheless is demanding that a federal court compel Apple to write code to unlock the encryption feature. The encryption program automatically erases all the phone’s content after 10 wrong passwords are entered.
Although the alleged investigatory rationale for the phone remain opaque, the real motivation for the FBI seeking a federal court order glistens with transparency. The FBI wants a precedent that will establish law enforcement’s and surveillance agencies’ right to overcome encryption.
This legal battle isn’t about one iPhone. It’s about all iPhones.
Just as 9/11-induced fear of terrorism brought us the Patriot Act and the omnipresent government surveillance revealed by Edward Snowden, the government today is banking on fear of terrorism to compel the federal judiciary in the San Bernardino case to become an accomplice to the destruction of our privacy. Two conflicting federal court decisions demonstrate the power of that fear. In the San Bernardino case, the federal court acquiesced to the government’s demand. In contrast, this past week in New York, a federal court, faced with the exact same arguments in a drug case, told the government no.
The government’s legal argument rests on a 1789 law, the All Writs Act, that essentially hasn’t been touched since. We’ll return to the All Writs Act in a moment. First, let me mention CALEA, the Communications Assistance for Law Enforcement Act of 1994. It was enacted to address the concern that “new and emerging telecommunications technologies pose problems for law enforcement.” That law allows the government to seek a court order to compel telecommunications companies to provide information to federal law enforcement. Tellingly, CALEA does not authorize the type of order that the government is seeking against Apple, and so the government necessarily reverts to reliance on the All Writs Act.
A writ is a piece of paper issued by a court that orders someone to do something, and the AWA indeed has been used to require individuals or companies to turn over to law enforcement evidence within its possession. That said, no court prior to Magistrate-Judge Sheri Pym’s order in the San Bernardino case has ever ruled that AWA empowers a court to order a third party to obtain or create, and then hand over, information it doesn’t already possess.
The government’s AWA argument – that the 1789 law is an expansive, all-purpose law-enforcement tool – is chilling. Under that interpretation, law enforcement would be entitled to obtain a court order forcing an individual to spy on his or her neighbor; an employee to retrieve information on a fellow employee’s personal device; a cyber security firm to remotely hack into a customer’s network; or a friend of a Black Lives Matter organizer to seek out information and report on that person’s plans for a peaceful protest.
The ACLU brief acknowledges the government can “in some circumstances require private parties to support law-enforcement investigations – for example, by requiring [production of] relevant items in their possession or giving truthful testimony.” The ACLU then stresses the principle that should govern this case — that the government “does not hold the general power to enlist private third parties as investigative agents” against their will and to “commandeer [them] into becoming its undercover agents, its spies, or its hackers.”
The hearing on the motion to vacate the court’s order against Apple is scheduled for March 22.
Attorney Bill Newman is director of the western Massachusetts Office of the ACLU, host of a WHMP weekday program and author of “When the War Came Home.” His column appears the first Saturday of the month.