The Right To Investigate Versus The Right To Privacy – The Apple Vs. FBI Debate

By: Tami Zupkow Hannon, Esq.

Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.

Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.

The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.

There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.

What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.

For questions or more information on “The Right to Investigate Versus The Right to Privacy – The Apple vs. FBI Debate,” contact:

Tami Hannnon

Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861