What is in this article?:
- How Will Apple Fight US Over Access to Terrorist's iPhone?
- A Bigger Fight
Apple has a message for the government: You can’t make us give you what we don’t have.
Confronting U.S. investigators who want the company to help them gain access to a terrorist’s iPhone, Apple is arguing that it can’t be compelled to create a key to the encryption of its devices.
The United States, invoking a catch-all law used more than 200 years ago to make people provide supplies in the war against the British, says it just wants quick access to a single locked device used by Syed Rizwan Farook in last year’s massacre in San Bernardino, Calif.
Apple has five business days to respond to a magistrate’s order issued on Tuesday. If it loses, it can appeal to a district judge, an appellate court and even the U.S. Supreme Court. It is hiring Gibson Dunn & Crutcher LLP litigator Ted Olson, according to a person familiar with the matter. (Olson, whose wife died in the 2001 terror attacks, counts among his courtroom victories Bush v. Gore and overthrowing bans on same-sex marriage.)
The Cupertino, California, company has a powerful case, lawyers and other experts said.
The Communications Assistance for Law Enforcement Act of 1994, which permits a court to order a design change, has been applied to telecommunications carriers but never to the new generation of technology companies including Apple, Google and Microsoft Corp.
As for previous requests by government to unlock iPhones, they have related to models with older operating systems that didn’t automatically encrypt information and could be broken into individually. Tuesday’s order forces Apple to create a new technology that the device would read as a legitimate iPhone function.
What About Iran?
“It’s not as if Apple has this key lying around,” said Alvaro Bedoya, executive director of the Center on Privacy and Technology at the Georgetown University Law Center. Instead, the company is “being forced to create a weakness” in its system, setting a dangerous precedent, he said.
Apple, which reaps most of its sales outside the United States, is worried about the impact of the order abroad, according to a person familiar with the company’s thinking. Countries with fewer civil protections than the U.S. or Europe could lean on the company to provide similar tools.
“It won’t just be followed by the U.S. and its allies,” Bedoya said. “It will be followed by the Iranian government, the Chinese government, by any number of governments that have very different records on civil liberties and dissent.”
Tuesday’s court order doesn’t require Apple to unlock the phone, or even to help the FBI unlock the phone. Instead, it requires Apple to provide the FBI with software that would disable the operating system’s security feature that auto-erases the phone after successive, incorrect attempts to enter the pass code.
“The judge’s order and our request in this case do not require Apple to redesign its products, to disable encryption or to open content on the phone,” Emily Pierce, a spokeswoman for the Department of Justice, said in an e-mail. “In addition, the judge’s order and our request were narrowly tailored to this particular phone.”
Apple CEO Tim Cook framed the situation in a blog post Tuesday framed as a “chilling” attack on civil liberties. The company may make arguments on First Amendment grounds, given that courts have held that computer code qualifies as speech, according to a person familiar with the matter.