On Tuesday, a federal magistrate-judge ruled that Apple must help the FBI break into the phone of one of the San Bernardino shooters. The FBI was unable to figure out the shooter’s passcode, which is the only way to get inside his iPhone. Since the phone is encrypted, if the FBI were to guess wrong 10 times, the iPhone will permanently erase all the data stored inside. Apple however, cannot simply hack into the phone. They would have to create a whole new operating system that removes security features allowing a passcode to be input electronically. This would make it easier to unlock any iPhone by “brute force,” trying thousands of combinations with a modern computer.
Instead of the FBI asking for legislative action through Congress, they have used the All Writs Act of 1789 (AWA), to expand their authority. This is not the first time the Act has been used against Apple. Apple is currently fighting another court order in New York requiring them to assist in unlocking an iPhone owned by a convicted drug dealer. However, what distinguishes that case with this one, is that the iPhone in New York is not encrypted. Therefore, Apple can assist in unlocking it without having to create a new operating system.
The AWA was created 227 years ago. There are qualifications that must be met in order for the AWA to be used as a way to compel Apple to create this software. Those qualifications are as follows:
- The Act is only applicable if there is no statute, law, or rule to deal with the specific issue at hand.
- The business in question has some connection to the investigation.
- There are extraordinary circumstances that justify the use of the Act.
- The Act only applies if compliance is not an unreasonable burden.
Presently, the first three qualifications have been met. There is no law or statute compelling a software company to create a new software that undermines its own product’s security. Further, Apple is closely connected to the investigation as the shooter had an iPhone as his main communication device. Lastly, the circumstances are especially extraordinary as this was an act of terror and the phone is an important part of the investigation.
The main defense for Apple is the 4th qualification. Apple believes compliance to the order is unreasonably burdensome. Apple claims the burden would be substantial as it would do massive damage to its brand. Customers would no longer trust the company with their data. Also, the creation of the new software would undermine the security of all their devices.
The next step for Apple is to appeal the order and at that point it will be left up to the court. If Apple can show a sufficient unreasonable burden, then the court will more than likely rule in their favor.
In the end, if Apple were forced to create this system, the implications would be alarming. According to a letter written by Apple’s CEO Tim Cook, “The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.” Infamous whistle blower Edward Snowden put it best in his recent tweet, “the FBI is creating a world where citizens rely on Apple to defend their rights, rather than the other way around.”