Why Apple is right to resist the FBI
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Posted on 03/13/2016 1:21:37 PM PDT by Swordmaker
The FBI wants Apple to do something no private company has ever been forced to do: break its own technology. Specifically, the FBI wants Apple to build a new version of its mobile operating system (iOS, or GovOS) so that the contents of an iPhone can be removed from an iPhone used by Syed Farook, one of the gunmen in the San Bernardino shooting.
A magistrate judge recently ordered Apple to comply with this request; Apple in turn filed a Motion to Vacate (MTV) the magistrate’s order. The key point made in the MTV — and the key issue on which this entire case hangs — is that complying with the FBI’s request would weaken a valuable encryption platform at a time when the United States desperately needs stronger, more effective encryption.
There is an arms race to create more-sophisticated, harder-to-crack encryption tools, and if the FBI gets its way, we will be running that race with a self-imposed handicap.
This week Apple is appearing before Congress to address the issues raised above. For those unable to attend the hearings, I want to explore how Apple is thinking about the FBI’s legal authority to compel the company to create new software to crack Apple’s security measures.
After exploring that legal issue, we’ll consider the broader constitutional stakes involved in this case. After all, it’s not everyday that the U.S. government is asking a private company to undermine a technology platform without providing any concrete evidence that doing so will make Americans safer.
To understand what the law says, we must first properly frame what the FBI is trying to compel Apple to do. Without a precise understanding of what the FBI is demanding in this case, it is hard to clearly say that the FBI is trying to overstep its bounds.
What is the FBI seeking here? First, the FBI is demanding that Apple make a new software product. Second, that software product would have to be designed in accordance with specifications provided to Apple by the FBI. Third, once Apple created that software product, it would have to test the product to ensure it met Apple’s own quality standards. Fourth and finally, Apple would have to test and validate this software product so that criminal defendants would be able to exercise their constitutional rights to challenge the government’s legal claims as provided by the Federal Rules of Evidence (FRE).
Forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Simply put, the FBI is demanding that Apple create a new software product that meets specifications provided by the FBI. As Apple clearly articulates in its MTV, the FBI is demanding “the compelled creation of intellectual property.” The legal grounds for the FBI’s demand come from the Communications Assistance for Law Enforcement Act (CALEA) and the All Writs Act (AWA).
With this understanding in mind, what does the law say? Is there any law that allows a government agency such as the FBI to compel private companies to create new software products?
Let us begin with the key law regulating the interception of electronic communications, CALEA. This law was enacted to carefully control the government’s right and ability to intercept communications in order to enforce the laws of the United States. Specifically, CALEA outlines the circumstances in which a private company must provide law enforcement with assistance in order to effectively carry out electronic surveillance.
Under CALEA, there is a strong argument that Apple cannot be legally required to create new software of any kind for any department of the federal government. When Congress passed CALEA, it had the opportunity to include device manufacturers like Apple within the scope of the law. Congress decided to require telecommunications companies to ensure that their equipment and facilities are built in a way that allows the government to conduct surveillance on the basis of a lawful surveillance warrant.
In other words, telecommunications companies have to build in a back door. However, under CALEA, Apple is not a telecommunications company; instead, Apple is considered an “information service” to which CALEA does not apply. In short, Congress made it clear they did not intend for CALEA to even apply to companies like Apple.
Even if CALEA applied to Apple, the FBI would not be entitled under CALEA to force the company to break its encryption protocol. The statute in section 1002(b)(3) states that telecommunications companies are not responsible for decrypting communications “unless the encryption (1) was provided by the carrier and (2) the carrier possesses the information necessary to decrypt the communication.”
Because Apple does not currently possess that information, even an improperly broad interpretation of CALEA would not compel Apple to create GovOS in this case. The FBI can ask, but under CALEA it cannot compel.
The All Writs Act (AWA) also does not allow the FBI to compel Apple to create new software. Enacted in 1789 as a stop-gap that allows the government to efficiently administer its given legislative privileges, the AWA is being given an impermissibly broad interpretation by the FBI.
According to that interpretation, this stop-gap gives courts any relief that is not specially prohibited by existing law. So, if there’s no law expressly prohibiting Apple from being compelled to write code for the FBI, then the AWA gives courts the authority to force the company to do just that.
Apple should do what is necessary to preserve our enduring constitutional values.
Let’s take a completely make-believe example. Imagine that a federal law gives a particular agency the right to do X, but doing X is hard and costly. The AWA might be invoked to help get X done more efficiently. But the key is this: The AWA is only appropriate when there’s already a federal law or a constitutional principle that gives the particular agency the right to do X in the first place. That is precisely why the AWA cannot be lawfully used by the FBI in this case: The FBI has no underlying right to compel Apple to create new software products.
If this seems like a legal technicality, zoom out a bit and reconsider that for just a minute. Imagine if the Department of Homeland Security used the AWA to argue that citizens with certain last names should be subject to arbitrary detention to make it easier to catch terrorists. Would that violate American values and our system of laws? Absolutely.
Alternatively, consider a scenario in which the Department of Energy tried to use the AWA to force federally funded universities to “donate” resources to the DOE in order to enhance its Energy Materials Network. Would this be inappropriate? It would be completely inappropriate, because the DOE does not have the underlying legal right to force universities to do this.
In a nation of laws, the FBI’s attempt to expand the AWA is dangerous. The FBI’s interpretation of the AWA transforms the law into something it was never meant to be: a tool granting government agencies boundless powers not authorized under the Constitution or in existing federal law.
Lawyers have a fancy way of describing this problem. They say that expanding the AWA violates the separation of powers between the federal courts and Congress. After all, what is the purpose of Congress if our courts are allowed to expand federal law without any meaningful limitations? One might go further still and say that forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Fortunately, a Brooklyn judge recently ruled, in a separate but similar case involving a demand from the Department of Justice to unlock an iPhone, that the AWA only empowers courts with “residual authority to issue orders that are consistent with the usages and principles of law.” Judge Orenstein explicitly condemned the government’s overreach in that case, echoing the exact concerns explored above: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about Congressional intent in 1789 — as to produce impermissibly absurd results.”
Apple should do what is necessary to preserve our enduring constitutional values, including life, liberty and the pursuit of happiness. Those values also include the privacy and speech rights protected by the Constitution. The First Amendment famously protects an individual’s right to say what he or she thinks or feels, and the Fourth Amendment guarantees that Americans shall be free of unreasonable searches and seizure.
These values and constitutional ideals are not mere commodities to be traded away, but are instead regulative ideals that capture and define who we are. Such ideals must remain unmolested by the temporary whims of each and every government agency. That’s what it means to be a nation of laws that is guided by a constitution.
In this particular case, Apple has a responsibility to resist the FBI’s efforts to force the company to undermine the security measures in its mobile operating system. To understand what is at stake here, one has to think deeply about what the world would be like if Apple were to comply with the FBI’s demands.
Imagine that Apple complied with the FBI. To do so, Apple would need to build a new version of iOS (GovOS) that does three things.
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
First, GovOS would bypass the auto-erase function for an individual iPhone. This feature is designed to prevent third parties from getting unauthorized access to an iPhone’s contents.
Second, Apple’s newly minted GovOS would need to provide the FBI a new way of electronically submitting passwords to a particular iOS device. At present, these passwords must be manually submitted, and each incorrect password submission results in a delay before another attempt can be made.
Third, and finally, GovOS would disable the delay between incorrect password submissions. In a nutshell, GovOS would be a special version of iOS that allowed an iPhone to be cracked automatically without knowing the owner’s password.
The FBI, then, is asking Apple to build a technology that destroys the value of the key security mechanisms built into its mobile operating system: The FBI wants to force a private company to build a tool that completely breaks the security technology for what is arguably the world’s gold-standard for mobile operating systems, iOS.
On this narrow issue, the FBI has to agree and concede this critical point. For the FBI cannot say that (1) it needs Apple’s assistance to crack an iPhone but (2) Apple’s assistance would not break a world-class encryption product. Once the FBI says that it needs Apple’s help, the FBI can’t honestly challenge the fact that the help it seeks would utterly break a security suite that Apple has spent years developing.
A recent conversation with information security expert John Sebes (formerly of Securify, acquired by McAfee) put this issue into proper context. Imagine you are building a security mechanism for your mobile ecosystem. You have spent years developing this system because you want to provide your customers, private citizens as well as the government, a software product that is secure. Your intention, in other words, is to create a product that protects the security and integrity of information your customers place on any device that has that security mechanism.
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this is all subterfuge. apple already helped the fbi.
Lots of words here to obfuscate a simple fact - Apple is ignoring a court order which they will find out is never a good idea. Give LE what they need. There is no doubt whatsoever a crime has been committed, get real.
Sorry, the government has destroyed any trust that the people had left in it.
It seems to me that in both cases that even if the FBI had the legal authority to do so, it would have to pay for the technology to be developed and also pay for the damage to the company's commercial reputation incumbent upon defeating its own technology, i.e., several billion dollars in Apple's case.
February 2017: President Hillary stores encryption key on home-brew White House email server...
Hill-arity ensues...
Fortunately Apple gets to fight this rather than some company with fewer resources. Apple has smarter lawyers than the government and more money.
Not so simple.
Apple is being ordered to turn over something that does not exist!
Wrong, there is a lawful warrant that Apple does not want to obey. You try that sometime and see what happens.
The are obviously not ignoring it, they are fighting it. A court order with the same tech. issue and the exact same legal argument (AWA) was just overturned in another case.
The author quickly conflates Judicial courts with Executive agencies...
It’s very silly.
Nope, there is no applicable warrant, hence the need for a court order.
Stay strong, Apple.
That’s an important point whichever side one is on.
The issue will receive full and competent review in the courts- which is the Branch most affected.
After that the congress can and must write laws on encryption.
Put Cook in jail and we will see how long it takes to drill. You are siding with criminals, why?
For my money, this is THE most important issue of this eletion cycle and the candidates are mostly ignoring it. The right of citizens to use stong data encryption is the 2nd amemdment issue for the 21st. century. Right now we have access to locks that the government can't open. It should stay that way.
Do you support the 2nd amendment? If so, why?
This seems a case of violating the Fourth Amendment that guarantees Americans will be free of unreasonable searches and seizure. The solution opens all owners of the phone to a search and that would be unreasonable.
The court order made sense in the days of Perry Mason when law enforcement was given permission to enter a particular residence and open a particular safe. In this case the software solution is equivalent to having the keys to open every house and safe in the country. That result is unacceptable to me even if I trusted the NSA, IRS, HLS, CIA, etc.
Strong encryption is coming to everyone- and there’s a need for it.
But I don’t think you’d like living in a world of ineffective courts that can’t compel evidence.
When everyone takes the law into their own hands justice is whatever the strongest say.
There are several ways to keep encryption from destroying the Fourth Amendment.
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