The Five Questions That Will Decide Apple's Fight With The FBI - The Verge

The five questions that will decide Apples fight with the FBI | The Verge
10/12/16, 5)46 PM
The five questions that

will decide Apples fight
with the FBI
These are the biggest legal arguments laid out in
the case so far
By Russell Brandom on February 29, 2016 01:37 pm ! Email " @russellbrandom
http://www.theverge.com/2016/2/29/11133720/apple-fbi-encryption-legal-defense-burden
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When the FBI order to break security

protections on Syed Farooks phone arrived on
February 16th, it came as a surprise to nearly
everyone. FBI director Comey had hinted that
the bureau was still struggling with a locked
phone from the San Bernardino case, but the
bureau had been complaining about locked
phones for more than a year. The idea of
compelling Apple to build passcode-breaking
software was still a novelty. What would such a
case even look like?
Now, were starting to get answers. After
Apples court filing Thursday, we can see
arguments laid out from both sides and start to
take stock of what the they will be fighting over.
In many places, the case touches on
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fundamental questions of government power

and the legal status of technology, issues that
will be attacked from every angle as the case
proceeds.
Its still very early in a case that will likely
stretch on for years, but five questions stand
out in particular. How the courts answer them
will decide whether the San Bernardino phone
stays locked, or Apple is compelled to build
the security-breaking software its gone to such
great lengths to avoid.
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How much can companies

be compelled to do for the
police?
This is the central question. As cited in the
governments motion to compel, the All Writs
Act gives the court the power "to order a third
party to provide non-burdensome technical
assistance to law enforcement officials" as long
as theres a valid warrant involved. So Apple
does owe the FBI some help here. Its just a
question of how much or in the language of
the court, whether the request is "unduly
burdensome."
But as GWU law professor Orin Kerr has
detailed, its not entirely clear what that
standard means in practice. The strongest
precedent is a 1977 Supreme Court case
called US v. New York Telephone, which
allowed law enforcement to compel a phone
company to collect call records for a group of
phone numbers being used to coordinate a
gambling scheme. But the language in the
ruling is vague in a number of places, and
there havent been many cases since then to
help nail down exactly what counts as "unduly
burdensome." For the most part, phone
companies have just kept quiet and complied
with the orders.
The government filings take a strictly
materialist interpretation of "burdensome,"
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arguing that Apple has the in-house expertise

to develop the software without too much
trouble or expense. Apple disagrees, saying
the code wouldnt be difficult to produce, but
its mere existence would cause a burden as
the company looks to store (or in a more
extreme scenario, delete and later reproduce)
that software without weakening the companys
security structure.
Experienced Apple engineers would
have to design, create, test, and
validate the compromised operating
system, using a hyper-secure
isolation room within which to do it,
and then deploy and supervise its
operation by the FBI to brute force
crack the phones
passcode.Given the millions of
iPhones in use and the value of the
data on them, criminals, terrorists,
and hackers will no doubt view the
code as a major prize and can be
expected to go to considerable
lengths to steal it, risking the
security, safety, and privacy of
customers whose lives are
chronicled on their phones.
This is roughly the argument Tim Cook has
been making publicly that the software is
"too dangerous to create." Does "burden"
extend to managing the existence of the
software after the FBI order has been served?
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Its genuinely hard to say, and the vagueness

of the precedent means the lawyers will have a
lot of room to maneuver on both sides.
How much does a given

iPhone have to do with
Apple?
One of the other standards set by New York
Telephone is that the company is not "so far
removed from the underlying controversy that
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its assistance could not be permissibly

compelled." At the time, the standard was
obvious: the phone network was being actively
used to further a criminal conspiracy, so the
phone company was tied in from the start.
According to the government, the same is true
with Apple and Farook Syeds iPhone:
Apple has positioned itself to be
essential to gaining access to the
subject device or any other Apple
device, and has marketed its
products on this basis. Apple
designed and restricts access to the
code for the auto-erase function
no other party has the ability to
assist the government in preventing
these features from obstructing the
search ordered by the Court
pursuant to the warrant. Just
because Apple sold the phone to a
customer and that customer created
a passcode does not mean that the
close software connection ceases to
exist; Apple has designed the
phone and software updates so that
Apples continued involvement and
connection is required.
Apples Thursday filing pushes back against
that idea. Unlike iCloud, locally stored data is
outside Apples control, so the companys filing
argues theres no connection between Apples
daily business and the data stored on Farooks
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phone.
Apple is a private company that
does not own or possess the phone
at issue, has no connection to the
data that may or may not exist on
the phone, and is not related in any
way to the events giving rise to the
investigation The All Writs Act
does not allow the government to
compel a manufacturers assistance
merely because it has placed a
good into the stream of commerce.
Apple is no more connected to this
phone than General Motors is to a
company car used by a fraudster on
his daily commute.
Its a useful metaphor, but its genuinely difficult
to say how far it extends into a world of
networked software. Historically, GMs cars
havent had to worry about cloud backup
systems or over-the-air software updates,
although even that is changing.
Modern tech products exist in a complex
network of updates and patches, never entirely
out of the manufacturers reach. Apple, more
than any other company, is responsible for that
shift. Apple doesnt own your phones
hardware, but it aggressively updates and
manages the software that runs on it and
provides extensive customer service if
anything goes wrong. Its hard to say where
Apples management ends and user control
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begins but thats a question the court will be

taking on directly.
(Gabriella Demczuk / Getty)
Do backdoors disrupt
Apples business?
This is a zoomed-out approach to the burden
argument, claiming the order is a fundamental
challenge to the nature of Apples business.
That would cut against the precedent
described in US v. New York Telephone in a
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number of ways. The Supreme Court ruling

takes care to note that New York Telephone is
a public utility that does not have "a substantial
interest in not providing assistance," and that
compliance presents "no disruption to its
operations."
Its hard to say how important those criteria
are, in part because of the ambiguities pointed
out by Kerr, but they line up with one of the
major points Apple has been making in and
out of the courtroom: complying with the FBI
order would weaken security for iPhone users
across the globe. The government referred to
these problems as "potential marketing
concerns," but they could also be framed as a
tangible harm to a billion iPhones around the
world. Even building the GovtOS for a single
phone and then deleting it forever would still
leave the knowledge of how such an attack
could be executed.
Apples filing puts it this way:
By forcing Apple to write code to
compromise its encryption
defenses, the Order would impose
substantial burdens not just on
Apple, but on the public at large.
And in the meantime, nimble and
technologically savvy criminals will
continue to use other encryption
technologies, while the law-abiding
public endures these threats to their
security and personal libertiesan
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especially perverse form of

unilateral disarmament in the war on
terror and crime. If the
government can invoke the All Writs
Act to compel Apple to create a
special operating system that
undermines important security
measures on the iPhone, it could
argue in future cases that the courts
should compel Apple to create a
version to track the location of
suspects, or secretly use the
iPhones microphone and camera to
record sound and video.
Establishing weakened security as an
extraordinary burden could have implications
across the industry. Is it burdensome to
demand that a texting app log metadata, or
forego forward secrecy? Quantifying security
risk is a notoriously tricky legal question, but if
the courts decide the issue is crucial to
Apples case, it could provide valuable legal
cover for smaller privacy-conscious services
like Signal and Telegram.
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Did Congress already settle

this?
Theres also the real possibility that the New
York Telephone case doesnt matter at all. The
All Writs Act only applies where theres no
preexisting statute that addresses the situation
but weve added a lot of new statutes in the
39 years since New York Telephone was
argued. Some legal experts have offered
1994s Communications Assistance for Law
Enforcement Act in particular as a relevant
statute. If the court agrees, it would strike at
the heart of the governments case, punting
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the entire argument directly back to Congress.

The governments filings address this up front,
claiming CALEA is inapplicable because
Apple isnt a carrier and the order concerns
stored data rather than real-time phone
records. But Apples filing points out a
separate section of CALEA that says the
government "cannot dictate to providers of
electronic communications services or
manufacturers of telecommunications
equipment any specific equipment design or
software configuration." Its not an exact match
since GovtOS wont be sold as a product,
maybe its more like a coding request than a
dictated software configuration but for
many, it sounds an awful lot like what the FBI is
asking from Apple in the broader encryption
fight.
It also matches a sentiment thats been
expressed on both sides of the encryption
fight: this may be a job for Congress. When
Comey first launched the FBIs "Going Dark"
initiative in June, it was more focused on the
Congress than the courts, and Tim Cook has
enthusiastically embraced leaving the issue to
Congress in his public statements since the
court order. And while Congress was certainly
sluggish when it faced the issue last time, its
genuinely unclear whether the San Bernardino
attack changed that balance of power.
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Does the Constitution

protect you from writing
code you think shouldnt
exist?
This is the big-picture argument, one that
Apple is likely to make if it takes the case all
the way to the Supreme Court. If code is
speech, then Apple cant be compelled to
make it. Apple puts it this way:
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When Apple designed iOS 8, it

wrote code that announced the
value it placed on data security and
the privacy of citizens by omitting a
back door that bad actors might
exploit. The government disagrees
with this position and asks this Court
to compel Apple to write new
software that advances its contrary
views. This is, in every sense of the
term, viewpoint discrimination that
violates the First Amendment.
Thats an ambitious legal argument, but its one
with a surprising amount of intellectual and
legal backing. Fights over copyright in
particular have given way to a lot of winning
legal arguments that treat code as speech, as
NYUs Gabriella Coleman has documented.
That will give Apple a lot to draw on in making
its case, although many of those arguments
are still controversial. Stanfords Albert Gidari
compared it to "compelling someone to shout
out of a window the key is under the
flowerpot."
But while those claims are the most
intellectually interesting, its unclear whether
theyll play much of a role in court. Most early
analysis (particularly Kerrs) has diagnosed the
case as a statutory question rather than a
constitutional one, and code-as-speech
arguments are most likely to serve as a
fallback if the more tangible burden claims fall
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through. The government hasnt had a chance

to directly respond to those arguments either,
so its hard to say how robust they will
ultimately be.
*****
Those arent the only possible arguments, and
there are plenty of other avenues for Apple to
explore in the months to come. Thursdays
brief entirely ignores the Fourth Amendment,
scared off by the combination of a
government-owned phone and an undisputed
warrant. Some have even said that the courts
order may violate international human rights
law, although it will be a while before Apple is
in a position to argue that case.
But however the case proceeds, its already
clear this fight will set major precedents for the
way tech companies deal with the
government, setting a standard for exactly how
far police are able to reach and how much
companies are required to help them. From the
beginning, Apple has argued that the FBIs
scheme is, if not technically impossible, so
ethically fraught that it becomes unworkable.
No one has ever had to defend that reasoning
in court, but how Apple does it and whether
it works will make a huge difference for
American software developers in the decades
to come.
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The five questions that will decide Apples fight with the FBI | The Verge

The five questions that

When the FBI order to break security

fundamental questions of government power

How much can companies

arguing that Apple has the in-house expertise

Its genuinely hard to say, and the vagueness

How much does a given

its assistance could not be permissibly

begins but thats a question the court will be

(Gabriella Demczuk / Getty)

number of ways. The Supreme Court ruling

especially perverse form of

Did Congress already settle

the entire argument directly back to Congress.

Does the Constitution

When Apple designed iOS 8, it

through. The government hasnt had a chance

THERE ARE 23 COMMENTS.SHOW

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