Earlier this week, the anti-encryption discussion got elevated to a war. No, a federal court judge did not order Apple to crack the encryption on the dead terrorist’s iPhone 5C, though you’d be forgiven if that’s what you heard or believed, since mainstream media outlets as big as NBC are reporting it that way. Thanks to Mike Masnick (@mmasnick) at Techdirt, I don’t have to explain the difference between what the order entered by U.S. Magistrate Judge Sheri Pym says versus the way it’s been widely reported in the news. As the court’s order states, and is explained by Masnick, and in a public statement later issued by Apple CEO Tim Cook, Apple has been ordered to develop new software to disable the iOS security features that cause the operating system to “time out” after repeated unsuccessful password entries, and which ultimately cause the phone to wipe all of its data after 10 unsuccessful password attempts.
The FBI has told the court that if Apple does them this solid, they will be able to decrypt the phone’s data on their own, by way of a brute force attack (uses automated software to generate a large number of consecutive “guesses” as to a desired passcode). In all ways imaginable, this is far worse than it would have been for the court to order Apple to decrypt the data on this one iPhone. Instead, the court ordered Apple to create a so-called backdoor, which, in theory, could be used to hack into any iPhone 5C in the future. Though the details are unclear, some experts believe that the software could be modified to work on other Apple devices. Perhaps even worse, it would set a dangerous precedent that would open the door to even more troubling encroachments on our civil liberties.
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.
While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.
– Tim Cook
But wait, there’s more! A few months ago, the government asked another federal judge to do exactly what they asked for here, but in that case the judge did not grant the government’s request. There, U.S. Magistrate Judge James Orenstein, for the Eastern District of New York, questioned the whether the court had the authority to compel a private entity to perform such an act. Both the government and Apple have filed responses to Judge Orenstein’s Oct. 9, 2015 order, but those documents are sealed, and not presently available to the public.
For those keeping score at home, we have seemingly contradictory rulings by two United States magistrate judges. Magistrate judges are appointed by the district court, as opposed to district judges, who are nominated by POTUS, and confirmed by the Senate. Magistrate judges get their authority from a federal statute, as opposed to district judges, who are appointed under the power of Article III of the U.S. Constitution. The reason I’m pointing out this distinction is to show that we aren’t (at least not yet) on a collision course to the U.S. Supreme Court, which typically resolves circuit splits—i.e. contradictory rulings by two or more federal appeals courts (a.k.a. circuit courts).
Admittedly, it’s difficult to imagine this issue not being decided by our nation’s highest court, especially in the wake of the death of Associate Justice Antonin Scalia. Scalia did not contribute to the Court’s written opinion(s) in Riley v. California, though he did join Chief Justice Roberts’s majority opinion, which required law enforcement to get a warrant before being allowed to search the cell phone of an arrestee. For obvious reasons, Scalia won’t have a say in whether a court can force a private company like Apple to assist the government in executing a search warrant, let alone whether this is an appropriate exercise of the All Writs Act—the 1789 federal law that the government says authorizes a federal court to compel Apple to build a backdoor to its own software. But for some reason I can’t help but imagine the way Scalia might resolve this…
For now, Apple is going to fight the court’s order. Apple got an extension until Feb. 26 to file its response with the clerk of the U.S. District Court for the Central District of California (h/t John Simek for the update @SenseiEnt). And Apple will not have to fight alone. The Electronic Frontier Foundation has already pledged to put its support behind Apple. The day after the court’s ruling, EFF’s executive director, Cindy Cohn, accused the government of unfairly objectifying the San Bernadino terrorist attack to justify its own interests at the expense of all Americans’ privacy and civil liberties. Cohn will no doubt make this a focal point of her keynote address at the 30th anniversary of #ABATECHSHOW, on March 18, 2016, in Chicago.
Also slated to speak at the world’s foremost annual legal technology conference next month are dozens of the most technologically savvy (read: geek) lawyers and legal industry professionals from all over the world, including ACLU attorney (and counsel to Edward Snowden) Ben Wizner (@benwizner), EFF special counsel Marcia Hoffman (@marciahofmann) and ACLU policy analyst Chris Soghoian (@csoghoian), on a panel moderated by Above the Law’s David Lat (@DavidLat). The panel will address what the legal profession has learned from the Snowden disclosures about the reach of state surveillance into attorney–client communications, and what lawyers need to learn about cybersecurity in order to protect privilege and confidentiality.