Fast and Loose

The Justice Department’s case against Apple is unconvincing.

In the deadliest terrorist attack on U.S. soil since September 11th, the San Bernardino shooting carried out by Tashfeen Malik and her husband Syed Farook left 14 Americans dead and 22 others injured. In an effort to uncover every detail of the attack’s planning, the FBI turned its attention to Mr. Farook’s iPhone, which hadn’t been backed up to the cloud since October 19th, exactly 44 days before the December 2nd shooting. Investigators wanted to access local content: photos, notes, contacts, messages, and videos that might have been taken in the interim. They sought to crack Mr. Farook’s password by trying every combination imaginable until they found it. Apple’s iPhone encryption software, however, has proven an obstacle, in this case and 155 others. Since September 2014, iPhones have been programmed to erase all local content stored on the device by default after ten unsuccessful attempts at entering a password. As a result, investigators cannot begin the time-consuming process of trying every possible passcode until they are able somehow to bypass this simple security measure. Accordingly, the Justice Department asked Apple to help it do so.

This is where the dispute begins. U.S. Magistrate Judge Sheri Pym ordered Apple this week to help the government circumvent the password protection measure on Mr. Farook’s phone within five days. Apple refused, explaining that, in order to comply with the judge’s order, the company would be required to design and run an entirely new encryption software that runs parallel to the original one, creating a backdoor that the company argues, once made, makes every iPhone vulnerable. In his open letter to customers posted February 16th, Apple CEO Tim Cook writes that such software would be the equivalent of “a master key” in the physical world, “capable of opening hundreds of millions of locks.” He further posits that such a step would establish “a dangerous precedent” for further government overreach.

In response, the Justice Department filed a motion on Friday asking a federal judge to immediately force Apple to comply with Judge Pym’s order. It dismissed Apple’s thesis, accusing the company of acting under the ulterior motive of “concern for its business model and public brand marketing strategy.” In the 25-page motion that the New York Times calls “sharply worded,” the government cuts to the core of Apple’s argument. It argues that writing the code necessary to bypass the encryption software on Mr. Farook’s iPhone does not amount to forging “a master key” because Apple can “maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders.” The basis of the Justice Department’s reasoning is the All Writs Act, which, the Supreme Court explains, “is a residual source of authority to issue writs that are not otherwise covered by statute.” The motion cites another ruling that establishes that the Court derives from the All Writs Act the power, “in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers.”

The operative word here is “nonburdensome.” The Justice Department’s motion lays out four main points: (1) The order’s legal basis under the All Writs Act; (2) Apple’s involvement; (3) that the order “does not place an unreasonable burden on Apple; and that (4) Apple’s assistance is necessary to effectuate the warrant. Cutting through the fluff, the Justice Department’s contention boils down to the following: their demand is tailored specifically to Mr. Farook’s phone, Apple has the ability to design the software with relative ease, and Apple can just get rid of the new software it designed once its use in this matter is completed. The most crucial part of that list is the last contention, which is the point around which this case revolves. The government’s premise is that Apple is wrong that the backdoor they create will pose a security threat because they can easily “destroy” it.  Apple argues that this is simply untrue, that if they design the backdoor, they open up a Pandora’s Box that they cannot contain, and that, therefore, this poses an unreasonable burden.

Based on the history of records as crucial as 21.5 million Americans’ private information held by the Office of Personnel Management being hacked from sources located in China, the Roosevelt Review believes that the Justice Department’s argument is weak. Apple perhaps exaggerates when it calls the government’s demands “chilling” and argues that this creates a “dangerous precedent” for further, more intrusive requests. Still, the Justice Department does not do itself any favors by asserting that Apple is taking a stand as a marketing scheme. Such an argument is remarkably obtuse and calls into question the basic judgment of the officials at the Justice Department leading the charge for Apple’s compliance. The Review holds that the security of the American people is a paramount concern and should be protected through the strongest measures available within the bounds of the law. There may indeed be significant information that investigators have yet to uncover in Mr. Farook’s phone. But Apple’s defense is far more convincing because it, too, relies on security, namely that of hundreds of millions of consumers who depend on their iPhones and other Apple products, from vital participants in our financial markets to government officials themselves. To create a backdoor may very well jeopardize that security. Once created, this software could be compromised by outside forces with sinister intentions. Better to let Mr. Farook’s trail go cold than to risk calamity. Until the Justice Department explains how they can assure that the software Apple would have to write in order to comply with the judge’s order does not fall into the wrong hands, their case has no substantial basis and should not proceed.

Author: Olivier Weiss

From the suburbs of New York, Olivier Weiss is an undergraduate student at the University of Virginia majoring in history and foreign affairs. His focus is on international relations from the perspective of U.S. values and interests, examining how developments affect the broader scheme of international order.

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