Liberty v. Security: Why Apple Might Defeat FBI, CA Court Order

The tensions between liberty and security, big and small government, and old law and new reality is playing out in Apple’s fight with the FBI over iPhone encryption.  Tim Cook just called the government’s request a “cancer,” concerned about a slippery slope into less privacy for all Americans.

The Court order telling Apple to cooperate with the FBI is grounded in the “All Writs Act,” an 18th century law granting federal courts the right to issue all orders “necessary or appropriate” to support the exercise of their jurisdiction, including making third parties help the government with an investigation.  Apple is refusing to create software that will turn off the security feature that auto-deletes all data on the phone after ten incorrect passwords are entered, to allow the FBI to “brute force” unlock the phone using software that tries thousands of passwords until it gets it right.

Apple argues that the government is overstepping its authority, and here’s why it might actually be right.  The Supreme Court created a test in 1977 to determine just that question in a case where a public telephone company refused to comply with a court order to put a tracking device on the phones of suspected illegal gamblers. Like many things in law, it’s a balancing test between rights and obligations.  The phone company lost, but the five-part test lives on.  Three parts  of the test clearly run in Apple’s favor:

1. The phone company was a public utility with a duty to serve the public, and it had no substantial interest in not providing assistance.  Apple isn’t a public utility, has no duty to serve the public, and has a substantial interest in not providing assistance – setting bad precedent in other cases, undermining user confidence, aiding hackers, weakening citizens’ privacy rights, the list goes on…

2. The phone company regularly used the device it refused to use under court order to assist the government.  Apple has never agreed to create this kind of software.  There’s a big difference between the government forcing a company to use a device it has used before, and making it create new code.

3. Complying the court order required only minimal effort for the phone company and wouldn’t disrupt its operations.  Apple has indicated that this is a huge undertaking from a technical standpoint.  They could also argue that agreeing to hack its own customer is about as disruptive as it gets when you’re in the data business.

The other two parts of the test are less clear, though a good argument can be made for Apple.

4. The phone company’s facilities were being used to further the crime.  Well, it’s not clear that’s the case yet.  The FBI wants to fill 18 lost minutes in the killers’ movements, and they can’t know what’s on the phone so can’t know it was used in the terrorist attack.

5. Without the phone company’s help, the government could not get the information.  Maybe. The FBI has developed some software in this realm and has had some success unlocking phones. But not with later versions of Apple’s IOS.

What happens next? Expect Apple to continue to fight this in the court of public opinion. Expect other tech executives to weigh in. Expect Apple to appeal to the district court and if necessary, all the way to the Supreme Court.  Given the current political fight over a new nomination, we can’t know whether Justice Scalia’s vacancy will be filled by the time this case is before that court, and therefore whether 8 or 9 Justices will decide whether the court order is “necessary or appropriate” to help the FBI fully investigate the San Bernardino terrorist attacks.

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