By Desiree van Iersel
The San Bernardino shooting
On December 2nd, 2015, spouses Syed Rizwan Farook and Tashfeen Malik targeted the San Bernardino County Department of Public Health training event. They opened fire and killed fourteen people and injured 22. The shooters were killed later that day in a shootout with the California police department. What remained uncertain in this alledged terrorist attack was motive. As the investigation progressed, it became clear that this attack was planned beforehand and that Farook and Malik were both radicalized Muslims. It turned out that Farook had been in contact with people the FBI suspected of terrorism and had contacted terrorist groups overseas such as Al-Qaeda. According to Farook’s father, he also shared the ideology of an Islamic caliphate just like ISIS leader Al Baghdadi. Shortly after the shooting, Malik openly expressed her allegiance to ISIS on Facebook.
In February 2016, the FBI stated that their investigators were not able to unlock Farook’s iPhone 5c, due to the advanced operating and security system Apple builds into its cellphones. The FBI considered the phone to be an important clue that might have contained evidence of the shooting and perhaps also linked Farook to for instance ISIS.
The background of the Apple v FBI case
When the FBI found out they could not access iPhone in question, they asked Apple’s help in the investigation. The company responded immediately and provided all necessary resources and technical support on a 24/7 basis to aid the FBI in the investigation.
The company provided the FBI with all data it possessed on Farook and Malik, like in for instance the data in their iCloud, with assistance, such as teleconferences, technical assistance, troubleshooting and trying to find ways to get to the information the FBI wanted. This all to no avail as on February 16th, the government filed a proposed order to the court to compel Apple to assist in the investigation under the All Writs Act. The court did indeed order Apple to create new software that would permit the FBI to access the iPhone in question. The order furthermore directed Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data” that was stored on the device. It further defined this technical assistance to include creating custom software that can be installed on the iPhone to accomplish three goals: (1) bypass or disable the iPhone’s “auto-erase” function, designed to protect against efforts to obtain unauthorized access to the device’s encrypted contents by deleting encrypted data after ten unsuccessful attempts to enter the iPhone’s passcode, (2) enable the FBI to electronically submit passcodes to the device for testing, bypassing the requirement that passcodes be manually entered, and (3) remove any time delays between entering incorrect passcodes.”
What this court order ordained was that Apple had to to create a new operating system for the iPhone that would bypass several security features such as the time delays between incorrect passwords and the removal of the data stored on the phone after ten unsuccessful attempts to enter the password. This new operating system would effectively create a back door into Farook’s iPhone that enables the FBI to get access to the data in question. A system like that has not been created before and has the potential to unlock any iPhone possessed by anyone. This will not only give the FBI a key to all the information stored on Apple phones, but it will also result in a dangerous legal precedent if Apple had to comply with the order. Creating such a “weak” operating system would require a lot of time and effort to build and even though such a system has not been created before, Apple estimated that it would require six to ten engineers and employees working on it for approximately four weeks. It is not as simple as switching off the existing code functionality but the engineers would actually have write a new code. They would have to create and implement untested functionality in order to allow the FBI to enter passwords in the way it is described in the court order. This new operating system needed to be tested and all activity needed to be documented in a log in case Apple’s methodology would ever questioned by a government institution. Once this custom-made operating system is operational, every test and every problem encountered need to be documented. If this system were to be destroyed after using it on Farook’s phone just as the FBI proposes, its creation would still have created a legal precedent which can be used in similar cases to compel Apple, or a similar tech company, to build this system again. This would become a very big burden for the company, especially since there are other similar cases eagerly awaiting the verdict in this matter.
Legal arguments concerning this case
The FBI bases this case on the All Writs Act. This writ states the following: “(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
This writ confers on all courts in the federation the authority to issue orders, granted that three requirements are fulfilled: “1. issuance of the writ must be “in aid of” the issuing court’s jurisdiction; 2. the type of writ requested must be “necessary or appropriate” to provide such aid to the issuing court’s jurisdiction; and 3. the issuance of the writ must be “agreeable to the usages and principles of law.” The precedent used is the New York Telephone Co. case. In this case, the Supreme Court decided that the company had to install a small register device that was created to record dialed numbers on two telephones as there was “probable cause to believe that the company’s facilities were being employed to facilitate a criminal enterprise on a continuing basis.” In this case, the court held that the All Writs Act constituted enough legal basis to order the company to place the device as it fulfilled the aforementioned three requirement test set by the court. The government argues that this case is similar to the Apple situation. They sent a proposed order to the California court that was signed and thereby compelled Apple to create the technology that would enable the FBI to break through the encryption and access the data stored on the phone.
However, Apple applied for relief of this order to the California court. The company claimed that the government’s use of the All Writs Act is incorrect. First of all, they claim that the Act is intended to create the possibility for courts to fill in legal lacunae so that they can exercise powers they already have. What the court is doing now by compelling Apple to assist the FBI is simply usurping a part of the legislative function of Congress. This legislative body has never before allowed judges to grant the services they are currently asking Apple to perform. In fact, Congress has withheld this ability in other situations. This issue led to a debate on security policy among the members of Congress. If this order would have been pushed through, one of the lacunae in the law would have been filled with a precedent and the debate would have taken another turn.
What needed to be taken into consideration were the existing laws on assistance of tech companies in law enforcement. Providers such as Apple are specifically left out of these laws and as the Supreme Court has held in the case of Pa. Bureau of Corr v US Marshals, the writ “does not authorize [courts] to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate”. The CALEA, Communications Assistance for Law Enforcement Act, states that it “does not authorize any law enforcement agency or officer (1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.” Apple most certainly is a provider of telecommunications support services as meant in the CALEA. As this is the case, the CALEA effectively states that the company is not required to implement a “specific design” in its products and or services. This is diametrically opposed to what the court order compelled Apple to do.
The government strongly relied on the New York telephone Co. case to argue that the court can compel Apple to assist in their investigation through the All Writs Act. In this case, the court found that the company was not so far removed from the issue at hand and that the assistance requested was not significant, so that the company had no reason to deny assistance and there was no way in which the FBI could install the pen recording device without alarming the suspects. What can be concluded from the factors used in determining this case is that the assistance requested cannot place an unreasonable burden on the company. An order based on the All Writs Act “must not  adversely affect the basic interests of the third party or  impose an undue burden.” Requesting Apple to build a new operating system that does not exist yet, and Apple’s own interest in not creating this system for reasons of data and customer protection shows that the order goes against what is laid down in the All Writs Act. The request goes against the requirements, but the matter in itself is also not related to Apple. The company does not own the phone in question, does not have access to its data nor did it have anything to do with the events that took place in San Bernardino. The current case is therefore nothing like the New York Telephone Co. case in which there were reasons to believe that the company’s own devices were used to run a criminal enterprise. The ruling of this case was heavily reliant on the fact that the company was of such a highly regulated, public nature. Contrary to this case, Apple is not a “highly regulated public utility with a duty to serve the public.” Apple is a private company that believes that encryption is necessary for its users to store their private data on their devices and the fact that Apple designed, manufactured and sold the iPhone and its operating system does in no way constitute the kind of connection as was required in the New York Telephone Co. case. “The All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a product into the stream of commerce. Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute.”
Congress has the power to request third parties to provide technical assistance, but has consciously not requested the assistance of a third party in retrieving data stored on technical devices. This decision to not request assistance of a third party, such as a tech company, indicates “a congressional choice with which the courts should not interfere” The executive power of state also did not urge Congress to change the CALEA so that this case would fall under its scope. If the court would indeed have compeled Apple to offer the technical assistance required, it would not only have been an infraction of the CALEA, but would be diametrically opposed to the doctrine of the separation of powers.
The political matter underlying Apple v FBI
Apple is not fighting a legal case, but a political one. Accordig to Baker v. Carr, “a case is a nonjusticiable political question if it is impossible to decide “without an initial policy determination of a kind clearly for nonjudicial discretion.”” Therefore, having a court decide on this matter is incorrect as such important decisions on policy need to be weighed and decided by the legislative branch. This is a matter that has impact beyond the national level and surpasses the purview of the All Writs Act.
If this order would have been upheld, it would have created a dangerous precedent for Apple, but also for other tech companies. If the government is able to order Apple to do as they have asked based the All Writs Act, then there is no telling how far the government’s requests will go in the future. For instance, the government could ask tech companies in future cases to build a tracker to locate suspects or write a code that enables them to switch on cameras and microphones whenever they please. This would mean that the government can compel anyone to do almost anything they deem necessary to help law enforcement.
Moreover, the FBI’s suggestion to destroy the operating system created for this purpose is appalingly flawed. If Apple would have created this system to help the FBI in this case, they would face court orders compelling them to open tens of thousands of iPhones from all over the country. This fear has been confirmed as Manhattan District Attorney Cyrus Vance, Jr has “made clear that the federal and state governments want access to every phone in a criminal investigation.” This would amount to an excessive, unreasonable burden for Apple if they would have to build and destroy an OS for every court order they get.
The alternative would be to keep and maintain this system-which also creates an excessive, unreasonable burden for the company. Maintaining the operating system means protecting it from disclosure and hackers. The last group will probably perceive this operating system as a grand prize to get their hands on as it gives access the data of the millions of iPhone users who store their private information on their devices.
What must be understood is that Apple did not refuse to help the FBI in their investigation. They have provided them with all information they had and the technical assistance they could provide. Apple declared that the government has every right to reasonably request assistance in investigations made by law enforcement agencies and stated that they have assisted the FBI on many other occasions by extracting data from old operating systems. Asking for minimal assistance and using something that already exists is something vastly different than what the government is asking now. This be a massive burden on the company that lacks support in the case-law the government has relied on.
National security and privacy: a tale as old as time
This case fired up the years-old debate on state surveillance and the protection of privacy. Matters concerning state surveillance have come up more frequently since 1994, when the Clinton administration adopted the CALEA legislation in response to the ever growing and changing technological possibilities. When the Apple v FBI case spurred on the debate once more, Congress did not actively try to change the CALEA or were pressed to do so by the executive branch.
This debate has split the country, as some rally behind Apple and others back government. First, the government’s concerns with encryption will be discussed. Later on, Apple’s arguments will be reviewed.
Encryption used in appliances and services becomes more sophisticated nowadays and this will not only result in protection against illegal interference by hackers but also in protection against (il)legal interference by the government. The government and security agencies are afraid that this improved technique might hinder criminal investigation and their fight against terrorism as they claim that encryption helps the criminals and leaves them with one hand tied behind their back.
What is necessary to understand in this encryption debate is that there are three major types of encryption: 1. Full-disk encryption; 2. End-to-End encryption and 3.Transport encryption. The first uses a PIN code, the second encrypts data so that it is only readable by the sender and receiver and the third encrypts the data on the servers of the company.
All these forms of encryption make it more difficult for intelligence services to gain access to private data. Therefore, some governments are now trying to ban, restrict, create backdoors, or get decryption orders to counter this effect.
Those who rally behind the FBI in this matter argued that such a measure is necessary to ensure national security. The demand for increased security in the nation is due to the perceived growing threat of for instance the Islamic State.
Since San Bernardino shooters Farook and Malik openly expressed allegiance to the Islamic State and were perceived by IS as “supporters” of their organization, the FBI was quick to name it an act of terrorism. What government is most afraid of is terrorists, like Farook and Malik, going dark. What is meant by this is the decreasing capability of law enforcement agencies to get the content of communications due to the ever growing use of data encryption in our current-day electronic appliances and the services provided. At this moment, the Apple v FBI case is of great influence on the new possible restrictions that may be put in place in the US to aid the intelligence services.
The human rights implications of encryption
Encryption, as argued by the opposition, is used by millions of people every day to ensure the safety of their personal data, bank accounts, contracts and so forth. Access to this kind of security is the way through which privacy is granted, but also the freedom of expression, information and opinion. This type of security is also an impactor of the right to the freedom of assembly and association as often, these messages spread via the internet.
These rights are protected through encryption, and possible interferences with encryption need to be laid down in transparent laws, must not be disproportionate, must not discriminate against particular (minority) groups and are only to be used when absolutely necessary. Amnesty International considers laws that ban the use of encryption as disproportionate and a violation of the right to privacy and the freedom of expression.
Measures like building a backdoor in a system are said to affect all users’ right to privacy and freedom of expression. Amnesty believes them to be very disproportionate and contrary to international human rights law. The organization believes that “states have obligations to respect, protect and fulfil the rights to privacy and freedom of expression. This includes protecting individuals against abuses by third parties (including foreign states), international organizations, corporations or private individuals. States should therefore actively promote, facilitate and otherwise ensure the security of online communications.”
There are several other interest groups that speak up about this issue in light of the possible discrimination they would face when the FBI would be able to push the court order through. The main targets of state surveillance are civil rights activists because their work often questions government actions. These civil rights activists include racial justice activists. State surveillance in the past has often focused on African-American and Muslim communities. These people are fearful of the future as they consider the threat of discrimination through surveillance the next step. The fears of black people, not only activists, are partialy based on James Comey’s admittance to using spy planes that monitored black protesters during the protests after the police killings of black people in Ferguson and Baltimore. After Ferguson, the Chicago Police Department started to monitor African-American (activist) groups. Among other things, they kept track of their social media posts and kept a log on demonstrations. In 2011 and 2012, undercover agents even infiltrated one of the activist groups, Occupy Chicago, to get information. So it can be acknowledged that the African-American community has a well-founded interest in the outcome of the Apple case.
Non-African-American (human) rights defenders also have an interest in how this encryption battle turns out. They use encryption as enablers of their freedom of expression, opinion, and their right to privacy. Human rights defenders, political dissidents and whistle-blowers may face persecution and harassment when encryption is no longer permitted or government-monitored. These are the people who oppose their government and speak out about possible human rights violations committed by the government and are for that reason vulnerable to persecution, harassment and sometimes imprisonment because of their work. Therefore, the human rights defenders, whether they are African-American or not, need encryption to be able to do their work without the possibility of being spied on.
Another argument often heard in the ongoing debate on state surveillance and the power of intelligence agencies is the one that states that privacy is a prerequisite of democracy. It is not the question of whether or not you have something to hide, it is a matter of your individual rights. These rights are the cornerstone of democracy and without privacy online or when using other technology, there is no real freedom of expression. It has also been argued that the fourth amendment was created to purposefully limit the government’s power to infringe in the privacy of the life of the citizen and that privacy is an essential part of democracy itself as it is a way through which individuals can hold governments to account and limit the expansion of the state. This right is the foundation for many other political rights people enjoy, such as the freedom of religion. Without privacy, how can one freely enjoy one’s religion? The infringement on the right to privacy can have a strong effect on the political discourse as for instance action or protest groups can no longer share their views or criticize the government without the state scrutinizing or even censuring them. So if the FBI would have gotten the order through, then the privacy of the citizens would have been severely weakened by the weak OS they asked Apple to create.
Compelling Apple to build a new operating system was a massive problem as it would have created a domino-effect in which other law enforcement departments in the USA would have wanted to use the new system on the thousands of iPhones they obtained through other criminal investigations. If the FBI would have won this case, it would have created a massive demand for Apple’s aid in breaking through their security features.
Apple Inc. originates from the US and has a big market there, but their products are used on a global scale. More than two-thirds of the company’s earnings are from abroad. If the FBI would have gotten access to the operating system that effectively created a backdoor in their security system, those phones that are used across the globe can, in theory, be framed as USA surveillance products which would negatively have impacted Apple’s sales. This is not just a national case with ramifications on the national scale, but due to the globalized nature of the internet and our market, this has become a case of global importance.
If the FBI indeed would have come through and Apple would have been compelled by the court to create the OS, it would almost certainly have lead to other nations asking for the encryption key as well. Iphone users would have been prone to violations of their privacy, not just in the US but everywhere. Minority groups and human rights defenders would have more chance to be spied upon, discriminated, persecuted, harassed and even put in jail because of their work or status.
Therefore, this case is not just about one single iPhone in one country, it is about the limitations on what governments can ask tech companies to do and how this affects the products and its consumers.This case is illustrative for the dilemmas in this world and clearly shows that the implications for human rights are massive. So if the United States would have succeeded in this case, other governments would have demanded the same thing as well. If Apple created a backdoor in their operating system, it will lead to other tech companies being compelled to do the same thing- on a global scale. This would have resulted in massive violations of the right to privacy, freedom of opinion and peaceful assembly and ultimately, those rights might have faded away and an electronic police state seems to become more of a realistic image for the future.
Hopefully, it will never come to this Orwellian state as legislatures all over the world have seen the need to debate this issue thoroughly and draft new legislation on this matter. They all take different views, ranging from banning it in Pakistan, to completely allowing it and even trying to improve encryption security in the Netherlands.
As for the US, they have luckily been able to solve this case as the FBI has managed to break into Farook’s iPhone without Apple’s assistance. The case will therefore not serve as a legal precedent but as an issue that spurred on debate in Congress. So the debate that has been going on ever since Snowden’s revelations is finally going to result in the creation of laws that are hopefully fitting to this era of technology and that will safeguard our human rights.