The Fight Between Apple and the FBI Could Shape the Future of Digital Privacy

The FBI’s request for Apple to help unlock an iPhone that belonged to a gunman in the San Bernardino mass shooting could have massive repercussions.
February 17, 2016, 9:45pm
Foto di Michaela Rehle/Reuters

The FBI's seemingly straightforward request for Apple to unlock an iPhone that belonged to a gunman in the San Bernardino mass shooting last year has massive repercussions for the future of privacy.

On Tuesday, Apple Chief Executive Tim Cook published a letter to customers saying that the company would fight a court order to help the FBI access an iPhone that belonged to Syed Rizwan Farook. Along with his wife, Farook shot and killed 14 people in San Bernardino, California last December in an attack that authorities said was inspired by the Islamic State. Both Farook and his wife were killed in a shootout with police.

The phone technically belonged to Farook's employer, the San Bernardino County Department of Public Health. The agency consented to the search and the FBI obtained a warrant, but, according to court documents, the feds claim they don't know the phone's passcode. If they input the wrong code more than 10 times, the phone could make its data permanently inaccessible. Hacking into it without using Apple-certified technology would theoretically also result in the phone wiping its data.

So the FBI asked a federal court in Los Angeles to compel Apple to help. The court in Riverside, California granted the FBI's request. Now Cook is balking.

Related: Apple: We Will Fight FBI Demand to Crack iPhone Passcode

"We have great respect for the professionals at the FBI, and we believe their intentions are good," Cook wrote. "But now the US government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone."

Eileen Decker, the US Attorney for the Central District of California whose office argued the case, said the court order reflects the government's zeal in fighting terrorism.

"We have made a solemn commitment to the victims and their families that we will leave no stone unturned as we gather as much information and evidence as possible," Decker said in a statement. "These victims and families deserve nothing less."

But experts believed the fight is bigger than either Apple or this specific terror investigation.

Watch the VICE News documentary Phone Hackers: Britain's Secret Surveillance:

The executive director of the Electronic Privacy Information Center, Marc Rotenberg, said it would set a terrible precedent for Apple to help the government hack into an iPhone.

"It's the exact same policy that the Chinese government or the Iranian government would pursue," Rotenberg told VICE News. "Once the US government proceeds with this, it will be impossible to make the argument against it anywhere."

Of course, tech companies routinely disclose information to authorities with search warrants. It's still not clear, for example, how much Apple and other companies gave to the National Security Agency, or NSA, in the electronic surveillance programs revealed by Edward Snowden. Those programs were linked to secret warrants issued by the US Foreign Intelligence Surveillance Court.

But the FBI wants Apple to do more than just share information that's currently in Apple's possession. It's asking Apple to hack into someone else's iPhone to access their personal information. Whether or not that someone else is a terrorist is not the issue, Cook argued in his letter. If Apple complies with the government's request, it will open a Pandora's box of compromises that will undermine the privacy of the company's company's customers and everyone else's digital privacy, he wrote.

Related: FBI Says San Bernardino Suspects Did Not Pledge to Wage Jihad on Social Media

"Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the US government," Cook wrote. "We are challenging the FBI's demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications."

Ironically, the FBI is asking Apple to exploit a security loophole in the iPhone 5C that Apple fixed in 2014 to stop hackers, said Bruce Schneier, a security technologist and fellow at Harvard University's Berkman Center for Internet & Society. The FBI is now asking them to undo that fix. Newer versions of the phone don't have the same vulnerabilities and wouldn't be susceptible to the same hack. But nonetheless the precedent would be terrible, he said.

'It's not just about that one phone. It's about all phones and all computers and all cars and all thermostats, Fitbits — all everything.'

"It's not just about that one phone," Schneier told VICE news. "It's about all phones and all computers and all cars and all thermostats, Fitbits — all everything."

More ironically, other arms of the US government and foreign intelligence agencies could probably hack into the Farook's phone if they had the opportunity, Schneier continued.

"The NSA probably has this capacity already," Schneier told VICE news. "The Russians probably have this already. Does the Chinese government? They probably have this capacity already. The Israelis? My guess is that they do. Cyber criminals? Give them another year."

The technical issues raised by Schneier illustrate how the FBI's case isn't even really about hacking into the phone, said Nate Cardozo of the Electronic Frontier Foundation.

Apple and the FBI will presumably go back court to argue over whether or not Apple should comply with the court order. Cordozo believed the FBI would be happy to win that fight. A victory would give the feds another tool to obtain information from consumer technology.

Related: Reporters Entered the Home of the San Bernardino Shooting Suspects, and Things Got Weird

But if the FBI loses — Apple could argue that hacking into its phone would destroy consumer confidence in its security measures, harm investors, and force programmers to say they have authorized code to hack into Farook's phone when in good conscience they have not — then the bureau might have a good argument on Capitol Hill to change the laws to make it easier to force companies like Apple to hand over information.

The FBI is citing the All Writs Acts of 1789 in its court arguments. That law empowers courts to order people or companies to perform duties in the pursuance of the law, like helping to uncover evidence in a terror case. The law has been amended over the years — Apple and other tech companies have disclosed information on smartphones in accordance with it, too — but it's not clear if the FBI can use the law to force Apple to hack into one of its products.

Cardozo also noted that Congress could be convinced to change the All Writs Act to clear up that gray area.

"This is an extraordinary symbolic case for the FBI," said Cardozo said. "This is being done to set up their case in Congress. When the FBI loses this fight — which is not a foregone conclusion whatsoever, but I think they likely will — they are going to run to Congress and say 'We need the power to order Apple to do what the court told us we couldn't do.' That's what I think the real motivation is for this particular fight at this particular time. It's going to present a very compelling story for Congress."

Follow John Dyer on Twitter: @johnjdyerjr