Apple’s refusal to help the FBI access information from the retrieved cell phone of San Bernardino shooter Syed Farook sets up a long-brewing confrontation between Silicon Valley and members of Congress including Sen. Dianne Feinstein, California’s senior senator.
Apple’s rejection of a court order demanding the company unlock the phone represents a pivotal crossroads in a growing debate over digital privacy versus security and is likely to determine whether law enforcement can access data that increasingly is being encrypted.
The outcome of the battle also will have implications not only for the growing use of cell phones in business transactions but for the ability of foreign governments such as China to pry into the personal lives of their citizens, analysts of the dispute said.
Kurt Opsahl, general counsel for the Electronic Frontier Foundation, an Internet privacy advocacy group that praised Apple’s decision, said the creation of what he called a “master key” to enter Syed’s iPhone would compromise security for iPhone users around the world.
“Even if you trust the U.S. government, once this master key is created, governments around the world will surely demand that Apple undermine the security of their citizens as well,” he said.
Feinstein, the senior Democrat on the Senate Intelligence Committee, previously has indicated she’s uneasy with Silicon Valley’s stand on Internet privacy. In December, she introduced legislation that would require social media companies to report “knowledge of any terrorist activity,” a proposal that tech companies also charged could lead to privacy violations.
On Wednesday, Feinstein denounced Apple’s decision to challenge the court order. “The U.S. attorney should be able to fully investigate the San Bernardino terrorist attack that killed 14 Californians, and that includes access to the terrorist’s phone,” she said.
Hours earlier, Apple CEO Tim Cook released a statement that said “the implications of the government’s demands are chilling.”
“The U.S. 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,” Cook wrote.
He was backed by Google’s CEO, Sundar Pichai, who in a tweet compared the order to “forcing companies to enable hacking” and said it “could be a troubling precedent.”
Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California on Tuesday ordered Apple to circumvent security features on Farook’s iPhone 5C.
Apple’s challenge of the order escalates the growing tension between Congress and tech companies over encryption. FBI director James Comey told the Senate Intelligence Commitee last week that law enforcement at all levels is suffering from criminals “going dark.”
Feinstein and Republican Sen. Richard Burr of North Carolina, the intelligence committee’s chairman, are considering introducing legislation to compel companies to provide law enforcement access to encrypted data when there’s a court order.
Feinstein pointed out that Farook’s cell phone is owned by his employer, San Bernardino County, and that Apple has no justification for refusing to help the FBI to unlock the data.
“I understand there are privacy concerns, but in this case the phone is owned by the county – which has consented to a search – and there is a valid search warrant,” Feinstein said. “It’s not unreasonable for Apple to provide technical assistance when ordered by the court.”
Cook, however, called the court order unprecedented and said it has “implications far beyond the legal case at hand.”
“The FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation,” Cook wrote. “In the wrong hands, this software – which does not exist today – would have the potential to unlock any iPhone in someone’s physical possession.”
Cook said the government is asking Apple to expose its users and their data to hackers and cybercriminals.
White House spokesman Josh Earnest disputed Cook’s characterization of what the FBI is demanding.
“They are not asking Apple to redesign its product or to create a new backdoor to one of their products,” he said. “They’re simply asking for something that would have an impact on this one device.”
But Matthew Green, an expert in cryptography at Johns Hopkins University, said bypassing the security on Farook’s phone would provide a key to open all other such phones.
“It’s like a Swiss army knife, it can be used over and over,” Green said.
Green said it would be difficult and expensive for Apple to create such a master key, but he believes it can be done.
Doing so might hurt Apple’s reputation for privacy, however, he said. That’s especially critical for the company as it markets the Apple Pay system that stores credit and debit card information.
“Perception can make a big difference,” Green said.
Court orders are not optional and Apple should comply
Sen. Richard Burr, chairman of the Senate Intelligence Committee
Rep. Ted Lieu, a Democrat from Los Angeles County, suggested that the FBI is essentially making Apple an arm of law enforcement by demanding the company write new software.
“Where does this kind of coercion stop? Can the government force Facebook to create software that provides analytic data on who is likely to be a criminal?” Lieu said. “Can the government force Google to provide the names of all people who searched for the term ISIL?” – a reference to the Islamic State.
Apple has five business days to challenge the federal magistrate’s order as being “unreasonably burdensome.”
The company has a good case, according to Jeffrey Vagle, executive director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School.
“This would require a purposeful declawing of the security mechanism that Apple has put in there for a reason, to protect its customers,” he said. “That’s a strong technical argument.”
The government is demanding Apple’s cooperation under the All Writs Act, a vague 1789 law granting courts power to issue orders not covered by other laws. The dispute could go to the Supreme Court.
U.S. Rep. Adam Schiff of Burbank, the senior Democrat on the House intelligence committee, predicted that the case will force Congress to take action in hopes of finding a resolution that addresses law enforcement, privacy and business implications. He said the implications are too important to be left to the courts alone.
“At the moment, we are far from any consensus, but the court’s decision will likely accelerate our consideration of how to weigh the competing privacy, security and competitiveness issues,” he said.
Senate intelligence committee chairman Burr indicated that he has little patience for Apple’s protests.
“In this case, under a valid court order, Apple has been asked by the FBI to unlock a government-owned cell phone to assist in the investigation of a terror attack that killed 14 Americans,” the North Carolina Republican said. “Court orders are not optional and Apple should comply.”