Legal Context of the Recent iPhone Order By Chris Saville

Legal Context of the Recent iPhone Order

By

Chris Saville

 

The San Bernardino shooting was the most lethal terrorist attack on the United States since September 11, 2001.[1] Fourteen people were murdered by just two assailants.[2] The shooters were reportedly in contact with international terrorist suspects and may have been connected with the terrorist group ISIS via social media.[3] In an effort to gather more information on their social media activity, the FBI recently requested a federal order compelling Apple, Inc. to assist in disabling security features on the iPhone belonging to one of the shooters.[4] The United States District Court for the district of California granted that order on February 16, 2016.[5] Instead of complying, Apple is fighting the federal order in court.[6] While there has been widespread public response to the order, Apple’s defiance, and the All Writs Act generally, there has been relatively little discussion regarding the content of the order itself. Despite several recent decisions on similar issues, the order is devoid of case law and the reasoning behind the decision. This piece attempts to provide some background information on the issue and how this situation might compare to previous decisions in a purely legal sense.

The government cites the All Writs Act[7] as their legal authority to compel Apple’s cooperation in this case.[8] The Supreme Court has interpreted the All Writs Act to provide courts with the “authority to issue writs that are not otherwise covered by statute.”[9] The statute has long been used to compel cooperation with law enforcement investigations involving telecommunications.[10] In United States v. New York Telephone Co. the Supreme Court upheld an order demanding a telephone company to comply with law enforcement in installing a pen register to aid in their search.[11] Recently, federal courts have extended New York Telephone Co., issuing writs compelling phone manufacturers, such as Apple, to assist law enforcement in unlocking smartphones during criminal investigations.[12]

Use of the All Writs Act to compel compliance in cases involving smartphones, however, has also faced resistance. After the Southern District of New York’s decision in In Re XXX, the Eastern District of New York refused to conclude that the All Writs Act automatically provided courts with the ability to compel phone manufacturers to unlock phones for law enforcement.[13] While refusing to immediately rule on the writ, the court leaned towards rejection.[14] It based its reasoning primarily on the issue of whether forcing Apple to sacrifice its security standards would be unduly burdensome.[15] The court also rejected extension of New York Telephone Co. to the unlocking of smartphones.[16] It found that Apple’s status as a private phone manufacturer was far different from the public utility company at issue in New York Telephone Co.. Further, the Eastern District’s case involved unlocking the phone itself, a practice not consistent with everyday operations.[17] In New York Telephone Co., however routinely used the requested relief in its day to day procedures.[18]

The facts in the Eastern District of New York’s case are facially similar to those in the case currently at issue. In the San Bernardino order, the FBI has requested Apple to provide them with the ability to bypass the auto-erase function on iPhones, electronically enter passwords, and prevent any software imposed time delays on the entry of individual passwords.[19] Ultimately this would provide the FBI with the ability to enter thousands of password combinations in a shorter amount of time and not trigger the iPhone’s feature of automatically deleting the hard drive contents after 10 incorrect password attempts.[20] In both this case and the Eastern District’s the federal government asked the federal courts to compel Apple, Inc. to provide assistance in bypassing security features on an iPhone. While the California District Court is not bound by precedent[21], one would assume that given the similarities the court would at least recognize the Eastern District of New York’s opinion and reasoning. As of this writing, however, the order is noticeably lacking any reference to the New York district opinion, or the reasoning behind the decision in general.[22] It will be interesting to see how the California court’s reasoning compares to that of the Eastern District’s analysis, because while the facts appear similar on their face, the current case is ultimately far more important to the interplay of national security and personal privacy.

While the Eastern District of New York case dealt with assistance in unlocking an iPhone, the federal government in the current case is asking for far more. The FBI’s request in the Eastern District opinion only asked for assistance in cracking the user’s code.[23] Here, the FBI is requesting Apple create entirely new software to take advantage of an existing security flaw.[24] This has far reaching implications not before encountered. It demands that Apple affirmatively create a way to allow the FBI to circumvent security features that were purposefully placed on the iPhone in an attempt to promote security.[25] While the FBI claims that use of such a “backdoor” would be limited to only this case, presumably they could also use the method to gain access to other phones wholly unrelated to the San Bernardino shooting.[26] Given the hesitation of the Eastern District to compel aid to merely unlock an iPhone, much less creating software that could be used multiple times to sidestep security features, it is interesting that the California court nonetheless granted the order. Without the court’s reasoning behind the decision, however, we can only speculate on the myriad of factors that went into the decision.

While there are a multitude of policy considerations that must be weighed when balancing national security and the rights of citizens, one must never forget the legal considerations that must also be assessed. A well-reasoned opinion detailing the methods in reaching a decision can have lasting effects on both the law and debates concerning the policy behind those decisions. Put simply, the lack of comparison to other case law, or analysis in general, deprives the law the benefit of the discussion. Furthermore, it deprives citizens of the reasons for decisions that might limit their freedoms. Policy arguments will continue to rage in favor or against the order, but policy is only one piece of the debate. Until the court publishes their analysis of the issue this debate cannot be truly informed. The legal community, and the public at large, eagerly awaits the District of California’s reasoning behind such a monumental decision.

 

 

[1] Peter Bergen, What Explains the Biggest U.S. Terror Attack Since 9/11?, Cable News Network (Dec. 5, 2015), http://www.cnn.com/2015/12/04/opinions/bergen-san-bernardino-terror-attack-explain/index.html.

[2] Faith Karimi, San Bernardino Shooting: Who were the Victims?, Cable News Network (Dec. 7, 2015), http://www.cnn.com/2015/12/03/us/san-bernardino-shootings-victims/index.html.

[3] Saeed Ahmed, Who were Syed Rizwan Farook and Tashfeen Malik?, Cable News Network (Dec. 4, 2015), http://www.cnn.com/2015/12/03/us/syed-farook-tashfeen-malik-mass-shooting-profile/index.html.

[4] Bruce Schneider, Why you Should Side with Apple, not the FBI, in the San Bernardino iPhone Case, The Washington Post (Feb. 18, 2016), https://www.washingtonpost.com/posteverything/wp/2016/02/18/why-you-should-side-with-apple-not-the-fbi-in-the-san-bernardino-iphone-case/?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory.

[5] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1 (C.D. Cal. Feb. 16, 2016).

[6] Tim Cook, A Message to our Customers, Apple, Inc. (Feb. 16, 2016), http://www.apple.com/customer-letter/.

[7] 28 U.S.C.A. § 1651 (2012).

[8] Bruce Schneider, supra note 4.

[9] Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).

[10] United States v. New York Tel. Co., 434 U.S. 159, 174 (1977).

[11] New York Tel. Co., 434 U.S. at 176.

[12] In re XXX, Inc., No. 14 MAG. 2258, 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014).

[13] In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, No. 15MISC1902, 2015 WL 5920207, at *7 (E.D.N.Y. Oct. 9, 2015).

[14] Id.

[15] Id.

[16] Id. at 5.

[17] Id. at 5.

[18] Id. at 5.

[19] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1.

[20] Bruce Schneider, supra note 4.

[21] Camreta v. Greene, 563 U.S. 692 (2011).

[22] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1.

[23] In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, No. 15MISC1902, 2015 WL 5920207, at *1.

[24] Tim Cook, supra note 6.

[25] Tim Cook, supra note 6.

[26] Tim Cook, supra note 6.

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