Tech Law

Cook et al Dig In Heels in iPhone Encryption Battle

CEO Tim Cook on Tuesday took Apple’s battle with the FBI directly to the public, penning an open letter in defense of the company’s resistance to a court order mandating it to create a way to access data in the iPhone used by the San Bernardino terrorists.

A federal magistrate issued the order because the high level of encryption built into the device had impeded the FBI’s investigation.

Cook called for a public discussion of the issues surrounding Apple’s objections to the demand, noting that the FBI was asking Apple, in essence, to create a backdoor that would unlock an encrypted iPhone.

That type of technology could threaten the privacy of all iPhone users, he argued.

“The FBI may use different words to describe this tool, but make no mistake,” Cook wrote. “Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”

Tool to Thwart Terrorists

U.S. Senator Diane Feinstein, D-Calif., in the wake of the Paris and San Bernardino shootings, introduced legislation calling on technology companies to assist the government by preventing terrorists from using social media and other technologies

Apple should comply with the judge’s order to develop a means for unencrypting the San Bernardino shooters’ iPhone, she said, joining a chorus of agreement among government and law enforcement officials.

“The U.S. Attorney should be able to fully investigate the San Bernardino terrorist attack that killed 14 Californians, and that includes access to the terrorist’s phone,” Feinstein said.

“I understand there are privacy concerns, but in this case the phone is owned by the county — which has consented to a search — and there is a valid search warrant,” she pointed out.

The problem appears to be that such a technological solution likely wouldn’t be limited to a single use.

“Essentially, the government is asking Apple to create a master key so that it can open a single phone,” said Kurt Opsahl, deputy executive director and general counsel at the Electronic Frontier Foundation. “And once that master key is created, we’re certain that our government will ask for it again and again, for other phones, and turn this power against any software or device that has the audacity to offer strong security.”

Dangerous and Unconstitutional

The order is “unlawful, unprecedented and unwise,” said American Civil Liberties Union staff attorney Alex Abdo.

“The Constitution does not permit the government to force companies to hack into their customer’s devices,” he told the E-Commerce Times. “Apple is free to offer a phone that stores information securely, and it must remain so if consumers are to retain any control over their private data.”

The government request sets a dangerous precedent, Abdo suggested, because if the FBI can order Apple to create a means to access the encrypted data on a customer’s device, any repressive government around the world could have the same expectation.

The ACLU is aware of at least 70 instances in which the government has used the All Writs Act to get Apple to unlock older phones, he said, noting that Apple had the software to help people who forgot their passcodes.

However, with the newer versions of iOS, Apple does not have that capability, Abdo noted.

The ACLU has filed a Freedom of Information Act request to get additional information on the earlier government requests.

Fight For the Future has scheduled a protest for Feb. 23, asking iPhone users and civil liberties advocates to rally at Apple Stores across the country.

“Governments have been frothing at the mouth hoping for an opportunity to pressure companies like Apple into building backdoors into their products to enable more sweeping surveillance,” said Evan Greer, campaign director for Fight for the Future. “It’s shameful that they’re exploiting the tragedy in San Bernardino to push that agenda.”

The group, which in 2014 rallied for Net neutrality in 20 U.S. cities, has launched a Facebook page calling for supporters to protest the court order and support Apple’s fight against the FBI demand.

David Jones is a freelance writer based in Essex County, New Jersey. He has written for Reuters, Bloomberg, Crain's New York Business and The New York Times.

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