The debate over encryption has reached new heights in a legal battle between Apple and the FBI.
In response to a federal magistrate’s order requiring Apple to assist the agency in accessing data from a phone belonging to one of the San Bernardino shooters, the company is pushing back, pledging to challenge the request in the name of its customers’ privacy.
CEO Tim Cook published a public response early Wednesday morning, just hours after a Riverside, Calif., judge signed an order asking the company to break into the encrypted iPhone of Syed Rizwan Farook, who, with his wife, shot and killed 14 people at a holiday party in December.
“We have great respect for the professionals at the FBI, and we believe their intentions are good,” Cook wrote in a letter to his customers. “Up to this point, we have done everything that is both within our power and within the law to help them. But now 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.”
The 3-page court order requires Apple’s engineers to create a new iPhone operating system designed to bypass the company’s security features and install it on the iPhone 5C that belonged to Farook’s employer, the San Bernadino Department of Public Health. Prosecutors hope to access “critical data” about the shooters, who had pledged allegiance to the Islamic State terrorist group, including people they were in contact with and where they traveled before the shooting. They cite the health department’s ownership of the device as further reason Apple should help unlock it.
Despite a warrant, prosecutors argued in a 40-page request that, “The government has been unable to complete the search because it cannot access the iPhone’s encrypted content. Apple has the exclusive technical means which would assist the government in completing its search but has declined to provide that assistance voluntarily.”
Photo illustration: Yahoo News, photos: Richard Drew/AP, AP (4)
The court order asks Apple to provide “reasonable technical assistance” in creating a new mobile operating system. This iOS would disable a feature in the iPhone that automatically erases its data after too many failed attempts for access. This way the FBI can attempt to unlock the phone by submitting an endless series of passcodes via something known as a brute-force attack.
While the order applies only to Farook’s device, Cook argued that creating this new software would ultimately compromise the privacy of the “tens of millions of American citizens” who use Apple devices.
“In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession,” he wrote. “The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Investigators already have “metadata” from the phone’s account—information about what other phones it communicated with, but not the content of any messages. No “direct overseas connections” were uncovered, National Security Agency head Michael Rogers told Yahoo News.
Amie Stepanovich, the U.S. policy manager for Access Now, a nonprofit dedicated to defending digital rights, agrees with Cook’s characterization, calling the workaround “a master keyhole that could be applied to any iPhone.”
“This is one of the most critical privacy and security issues facing the country today,” Stepanovich told Yahoo News in an email. “I expect the political candidates will be forced to take a position if they haven’t already.”
According to the court order, Apple has five days appeal the decision. The legal issues likely to come up in court will revolve around a new interpretation of the All Writs Act of 1789. The statute allows judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Apple is likely to argue that the court’s order places an undue burden on the company by requiring enormous time and energy, and compromising the public’s trust in its products, according to Nate Cardozo, a staff attorney at the Electronic Frontier Foundation. The public legal battle could be the beginning of a long-term FBI strategy to earn new backdoor powers.
“If they win, great for the FBI. They get a precedent going forward where they can demand a backdoor into essentially anything,” Cardozo told Yahoo News. “If they lose, maybe even better for the FBI, because they can go to Congress and say, ‘Look, the law didn’t allow us to do what we wanted to do in San Bernardino.’ Either outcome is great for the FBI.”
Cook’s letter echoes a statement that Apple sent to the British Parliament in December, asking legislators to reconsider new surveillance proposals that would ask the company to bypass encryption at the request of the government.
In an interview with Charlie Rose that month, Cook emphasized the importance of protecting encryption, even in the face of terrorist threats.
“I don’t believe that the tradeoff here is privacy versus national security,” he told Rose. “I think that’s an overly simplistic view. We’re America — we should have both.”