Apple must help the FBI unlock an iPhone used by one of the attackers in the San Bernardino, Calif. assault in December, a federal magistrate judge ruled this week. The ruling handed the government an important victory in an ongoing struggle over its ability to gain access to encrypted data in investigations. Apple has pledged to fight the order, arguing that allowing the government a tool to access encrypted data on its products would violate the privacy of its customers.
The FBI said experts are unable to access data on the phone, and that only Apple could bypass the security without the risk of data loss. The Justice Department secured a search warrant for the phone, but Apple refused to provide any information about its encryption technology to assist the government. Apple CEO Tim Cook responded that the court order amounts to creating a “back door” to bypass Apple’s strong encryption standards — something the company does not currently possess and does not wish to create. Apple argues that doing so would compromise its systems’ security and possibly allow hackers access to private information.
Since 2014, both Apple and Google are using “full disk” encryption, which leaves the companies unable to unlock their own products once they are in customer hands. This move began the ongoing confrontation with police and prosecutors, who argue the companies should possess a functional skeleton key that could get around the encryption. Both companies argue such a key would be disastrous for personal privacy. The FBI’s argument rests on a novel reading of the All Writs Act of 1789, which the government argues gives broad latitude to judges to require “third parties” to execute court orders. Apple, in turn, argues that the Act cannot be interpreted to force a company to take possession of a device outside its control and perform services on that device, particularly where the company does not perform such services as part of its business.
The outcome of this fight will have profound effects on the balance between privacy and security, further clarifying the scope of law enforcement authority in the 21st Century to access data collected and stored on an ever-increasing array of devices. A victory for the government would grant law enforcement agencies broad authority to compel technology companies to assist in their investigations, even if that assistance requires provision of new services or creation of new technology to allow law enforcement access. A victory for Apple would clarify the extent of privacy in the digital age, redefining the definition of a reasonable expectation of privacy to include strong protections from law enforcement intervention in secure digital realms. How we conceive of privacy in the era of drones and iPhones, and how the Fourth Amendment will adapt to address our evolving notions of privacy, remains to be seen. Yet the question of what law enforcement is entitled to, and what steps are required for it to earn access to digital devices, is one of vital importance to the way these technologies, and law enforcement responses to them, develop in the years to come.
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