Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action By: Ross Benson

Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action

By: Ross Benson 

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik initiated a terror attack on an office party at Farook’s workplace in San Bernardino, California, killing fourteen co-workers and wounding twenty-two others.[1] The two culprits were killed in a shootout with police outside the office building.[2] With the perpetrators dead, investigators had to determine a motive and find any other co-conspirators based on physical evidence that could be accumulated on Farook’s person and his residence. For investigators, Farook’s iPhone[3] would be the key piece in this case; the phone would show who had been in contact with Farook, where Farook obtained the weapons and supplies for the attack, and other valuable leads in the case.[4]

The FBI, headed by Director James Comey, sough first to work with Apple and have Apple voluntarily “open” Farook’s iPhone by creating a new operating system (“GovtOS”) that would allow certain features—including the security code—to be disabled.[5] Citing privacy concerns, Apple refused to crack Farook’s iPhone for the FBI.[6] Comey then applied for a search warrant, invoking the obscure All Writs Act of 1789.[7] Armed with the Writ, the FBI obtained an order from a magistrate judge compelling Apple to assist the investigation.[8] Apple again opposed the order.[9]

In a letter to customers, Apple CEO Tim Cook described the FBI’s fight against Apple as “unprecedented” and “threatening to the security of customers.”[10] Cook addressed San Bernardino directly, saying that Apple is “shocked” and “outraged” by the violence committed and has no sympathy for terrorists whatsoever.[11] In following the court order, Apple was happy to turn over any data that the company had it its possession in order to help the investigation.[12] However, Apple has described the FBI’s request as one which would require the company to write an entire operating system which could put all of its customers at jeopardy.[13]

In building a backdoor to get into Farook’s iPhone, Apple would be creating a digital key that could be used over and over on any Apple device.[14] Cook describes the backdoor as a “master key” that would be capable of opening hundreds of millions of locks including bank accounts, businesses, and homes.[15] In today’s world, an iPhone at its core is a handheld computer that happens to make phone calls; it is no longer a phone that also has other applications and programs.[16] Apple viewed the FBI’s request as a zero-sum-game where the loss of one user’s privacy necessarily impacts all users.[17] The order to “hack” Apple’s own users would undermine decades of security advancements that have been created to protect users from hackers and cybercrime.[18] Additionally, modern technology has advanced to a level where low level hackers could attack a device’s passcode electronically by using “brute force.”[19]

As Apple refused to comply with orders and made their case in the court of public opinion, FBI agents began to use the brute force tactics that Tim Cook was concerned with. Instead of an unsophisticated hacker attempting for force their way past the phone’s security system, one of the most powerful agencies in the world put all its might behind breaking in. After the long legal battle, the FBI suddenly withdrew their order, stating that due to third party help, the FBI could break into the phone without compromising any of the phone’s data.[20]

To unlock Farook’s iPhone, the FBI hired professional hackers to study the iPhone’s base code to find a way into the phone.[21] Finally, the hackers discovered a flaw in the software that would allow the FBI to access the data uncorrupted.[22] For the ability to crack the phone, FBI agents paid these professional hackers at least $1.3 million.[23]

It is unclear how the FBI will choose to proceed in similar cases going forward. While the FBI has the law on their side, the tech community clearly has a set of concerns that run counter to the FBI’s goals of obtaining all information.[24] The FBI has a job to do: keep Americans safe. Conversely, companies such as Apple must ensure that its customer’s privacy is protected and any devices sold are secure. Opening loopholes for the government would not only create issues with intrusive searches, but also provide the opportunity for these professional hackers to find their way in to a user’s phone and steal, sell, or destroy personal information.[25]

Either way, the FBI has shown that it will do what it takes to get into a phone or other personal device. By fighting the order to help the FBI so publicly, Apple gave the FBI the incentive to figure out how to break in themselves. In trying to send a message to consumers that privacy is a paramount concern to the company, many Americans view Apple as having used a tragic high-profile attack to advance their brand.[26] Prior to this case, Apple had complied with at least seventy warrants since 2008.[27] The fact that Apple chose to make a stand in this instance has raised questions about the company’s motive for many individuals.[28]

Next time, government agencies may not partake in a drawn-out public battle with a technology company. Instead, if the company doesn’t comply with demands or court orders, agents may simply kick in the virtual door. There is good reason to doubt the intentions of a company like Apple, however opening backdoors for the government—or other nation’s governments who are free from constraints—would create a dangerous precedent and loopholes ready to be exploited. Apple is stuck between two difficult choices: create the requested backdoor, or invite agencies to break in themselves. Apple chose the latter path, and future outcomes will not be known until Apple’s help is requested again.

[1] Everything we know about the San Bernardino terror investigation so far, Los Angeles Times (Dec. 14, 2015) http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html.

[2] Id.

[3] Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case, The New Yorker (Feb. 19,. 2016) http://www.newyorker.com/news/amy-davidson/a-dangerous-all-writ-precedent-in-the-apple-case. Interestingly, Farook’s phone was actually property of the San Bernardino Health Department—Farook’s employer—and the department had consented to a search of the phone. No Fourth Amendment issues are present in this case.

[4] Sean Hollister & Connie Guglielmo, How an IPhone became the FBI’s public enemy No. 1 (FAQ), CNET (Feb. 25, 2016) https://www.cnet.com/news/apple-versus-the-fbi-why-the-lowest-priced-iphone-has-the-us-in-a-tizzy-faq/

[5] Matt Burgess, GovtOS: Why Apple won’t unlock iPhones for the FBI, http://www.wired.co.uk/article/why-apple-refuse-help-fbi-iphone.

[6] Davidson, supra note 3.

[7] 28 U.S.C. § 1651 (authorizing United States Federal Courts to grant, “all writs necessary in the aid of their respective jurisdictions”).

[8] Elizabeth Weise, Apple v. FBI Timeline: 43 Days that Rocked Tech, USA Today (Mar. 15, 2016) http://www.usatoday.com/story/tech/news/2016/03/15/apple-v-fbi-timeline/81827400/.

[9] Id.

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

[11] Id.

[12] Id.

[13] Id. Tim Cook notes that there is currently no program in existence that would allow an entity or hacker to install a program that would circumvent a device’s security features. “In the wrong hands…this software would have the potential to unlock any IPhone.”

[14] Id.

[15] Id.

[16] Mikey Campbell, Man pleads guilty in celebrity iCloud hacking case, admits to phishing scheme, Apple Insider (Mar. 15, 2016) http://appleinsider.com/articles/16/03/15/man-pleads-guilty-in-celebrity-icloud-hacking-case-admits-phishing-scheme. Especially with the prevalence of the iCloud, the entry into one device could get a hacker into a person’s entire network. Celebrities have been common targets, with personalities like Jennifer Lawrence and Kate Upton having their private pictures posted on the internet as a result of a hack into one Apple device. See, Caroline Moss, Nude Photos of Jennifer Lawrence, Kate Upton, and Ariana Grande Leak in Massive Hack, Business Insider, (Aug. 31, 2014) http://www.businessinsider.com/4chan-nude-photo-leak-2014-8.

[17] Supra, note 10.

[18] Id.

[19] Id. Brute force a term used to describe the systematic attack on a security password. Modern computers are capable of bombarding another device with unlimited passcodes until eventually the right combination is entered. Apple has designed their phones to lock up after several failed attempts, preventing brute force tactics from working. Apple is concerned that the backdoor override the FBI wants to implement would allow individual hackers to simply force their way into the phone by creating programs to systematically input passcodes. See, Paul Gil, What is ‘Brute Force’ Dictionary Hacking, LifeWire (Sept. 16, 2016) https://www.lifewire.com/brute-force-dictionary-hacking-4061418.

[20] Supra, note 8.

[21] Ellen Nakashima, FBI paid professional hackers one-time fee to crack San Bernardino iPhone, The Washington Post (April 12, 2016) https://www.washingtonpost.com/world/national-security/fbi-paid-professional-hackers-one-time-fee-to-crack-san-bernardino-iphone/2016/04/12/5397814a-00de-11e6-9d36-33d198ea26c5_story.html.

[22] Id.

[23] Julia Edwards, FBI paid more than $1.3 million to break into San Bernardino iPhone, Reuters (April 22, 2016) http://www.reuters.com/article/us-apple-encryption-fbi-idUSKCN0XI2IB

[24] Marco della Cava & Jessica Guynn, Tech giants to file joint pro-Apple amicus briefs, USA Today (Feb. 25, 2016) http://www.usatoday.com/story/tech/news/2016/02/25/microsoft-file-amicus-brief-supporting-apple/80935714/.

[25] Supra, note 10.

[26] Brain Mastroionni, Feds: Apple has unlocked iPhones “many times” before, CBS News (Feb. 18, 2016) http://www.cbsnews.com/news/feds-apple-has-unlocked-iphones-before/.

[27] Kim Zetter, Apple’s FBI battle is complicated. Here’s what’s really going on, Wired (Feb. 18, 2016) https://www.wired.com/2016/02/apples-fbi-battle-is-complicated-heres-whats-really-going-on/.

[28] Id.

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