Tuesday, February 23, 2016

Apple vs. the FBI - A Legal Analysis

The news has been buzzing over the last few days about the case of Apple defying the FBI's request to assist in unlocking the San Bernardio shooter's iPhone.

The background on this is pretty straightforward. The San Bernardino shooter's phone was lawfully discovered by FBI agents in connection with a valid search warrant. No one disputes that the FBI is allowed to access the information on the phone, not even Apple.

The problem is that the FBI doesn't have the password to the iPhone, and:

1. The phone might have a setting activated where it will erase its data after too many wrong entries;
2. The phone normally requires you to input the code via the touch pad (which is slow); and,
3. The phone imposes a waiting period between incorrect entries.

The FBI then went to Apple to ask the tech guys there to assist them with a workaround of the security system, so the FBI could very quickly (though electronic means) enter passwords at random, in a "brute force" method of systematically entering all possible passwords until the right one is found.

Apple said no, so the FBI went to court and obtained a court order requiring the private company to provide assistance to the FBI over their objection.

Initially, I was sort of skeptical that there was legal authority for a Court to compel a private person or company to somehow assist the government in law enforcement. My thought was that Apple isn't part of the FBI, and the FBI isn't entitled to commandeer or draft the tech guys working for Apple into the FBI's investigation. I was curious how a court arrived at this conclusion, as I felt pretty sure of myself that this seemed wrong. So, I did some research.

The first place I started was with the Court order itself. [PDF of full order] The first sentence contains the entirety of the legal basis for the rest of the order and by stating:

"This matter is before the Court pursuant to an application pursuant to the All Writs Act 28 U.S.C § 1651,...."

Okay. First of all, maybe using "pursuant" twice in one sentence isn't great writing, but that aside, my next thought was: What in the world is the All Writs Act?

Next stop, All Writs Act. Apparently, the All Writs Act isn't very long. Here's the whole thing:
28 USC § 1651 (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
Okay. So...it appears the "All Writs Act" is basically a statute that says federal courts are allowed to issue any order necessary to do what is necessary. Seems...vague, right? After a little more looking, I found a case where the US Supreme Court addressed the idea of a federal court using the All Writs Act as the basis to force a private company to assist law enforcement. United States v. New York Telephone Co., 434 U.S. 159 (1977). [Full case at the link]

Back in 1977 the prevailing technology was the telephone. Apparently, the FBI had probable cause to believe that there was some gambling going on at a certain location and that some telephones were used there for the purpose of furthering the gambling. They wanted to install some "pen registers" but needed the New York Telephone Company to help do it because any other way would tip off the bad guys. Problem was, the New York Telephone Company didn't want to get involved.

Sounds on point, right? The FBI is trying to investigate something and needs help from a reluctant third party. The Court ruled in favor of the FBI and created a three element test:

1. How far removed is the third party from the issue in question?
2. Does the third party have a substantial interest in not providing the assistance?
3. Is there any other way to achieve the government's goal without the third party?

For whatever it's worth to you, that was a 5-4 decision, so even the Supreme Court was divided on this one. Personally, I was somewhat more persuaded by the dissent, but maybe that's because I was looking to confirm my own inclination. In any event, it's the law.

So this situation isn't new. Anyone telling you that this dispute between Apple and the FBI is unprecedented is simply either uninformed or trying to con you. This situation has come up in the past, but nowadays we're just dealing with different kinds of locks and keys.

Accordingly, I don't think that Apple's position is as strong as I first did.

Looking at the three factors, I don't see how Apple can really prevail, in that they are closely associated with the iPhone, being the manufacturer and that they can deactivate these software features, and finally, Apple's objection is more ideological/theoretical than anything else. It's not like they have to publicly divulge some sort of trade secret.

Note, the FBI isn't asking for Apple to "let them in" to the phone or even all phones, they're just asking Apple in this one specific instance, to deactivate these settings for this one phone, so the FBI can conduct its lawful search.

I would be surprised if the FBI loses this legal argument.

1 comment:

  1. Really enjoyed reading this. So interesting about the telephone company.