Crypto-War: What is it Good For?: The FBI’s Legal Battle with Apple Encryption…is Over!

The FBI’s legal battle with Apple over its use of strong encryption on the IPhone began after the horrific 2015 San Bernardino terrorist attack by a couple who swore allegiance to ISIS. In the aftermath the FBI recovered an IPhone 5c belonging to one of the terrorists, which the FBI believed may contain information about other terrorist cells, but is unable to access the information because the IPhone is encrypted. The FBI initially requested Apple’s assistance by asking Apple to alter the built-in security features of the recovered IPhone, so that the FBI could try to guess the correct passcode to unlock the phone.

Unlocking the phone with a correct passcode would decrypt it to obtain access to information stored on the phone. Apple refused the informal request. The FBI followed up with a court order premised on a 227 year old law called the All Writs Act. The Act authorizes federal courts to issue any writ necessary to aid the issuing court in enforcing its respective jurisdiction, if no alternative judicial methods are available. In the present case, the FBI claimed that no alternative means existed to obtain the information from the IPhone. The Court was persuaded by the claim, and issued an order under the Act that directed Apple to assist the FBI. Apple refused to comply with the Court order and has challenged its scope and validity under the All Writs Act.

By all accounts Apple’s challenge was shaping up to be legal battle that would define the digital age, but on March 22nd the FBI withdrew the order noting it had found an alternative means to access the phone, without Apple. So, is it over? Certainly not. This issue will be perennial as our lives become more and more dependent on handheld computers like the IPhone. Next time around, Apple can be expected to argue that any court order or ruling that requires Apple to break the IPhone’s encryption by creating specialized software, which could be used to potentially gain access in any of the 94 million IPhones’ currently in use within the US. This kind of backdoor access would violate their customer’s implied right to privacy and constitute an “unreasonable” search of those customer’s property under the Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”.

How can Apple assert a constitutional violation of their customer’s rights when that customer is not even party in the case? By bringing in its own equally ancient legal doctrine known as Jus Tertii (literally “Third Party Standing”) and pairing it with a 40 year old Supreme Court case about beer (Craig v. Boren 429 U.S. 190). Jus Tertii would allow Apple to have standing as a third party to argue a violation of its customer’s Fourth Amendment rights. Whereas, Craig, a case where a beer vendor successfully asserted a violation of his customers constitutional rights on their behalf by a discriminatory drinking age law, would provide the precedent of a corporation asserting a violation on behalf of a person. Apple’s unique position as a leading provider of smart-phones, having sold a total of 700 million IPhones, lends great weight to its argument that any court order or ruling which directs Apple to break their phones’ encryption would threaten to undermine the constitutional rights of a very large number of real people. People who are not parties in the case, but who are relying on Apple to protect their rights by protecting their information.

While Apple’s latest legal battle with the FBI is over, one thing is for certain, whatever the judicial outcome of the next case, this battle cannot begin and end with a legal argument. A judicial ruling cannot supplant the necessity of having a robust public debate. Eventually, elected and accountable public officials will have to get involved, and we will have to decide what we value more in this digital age; privacy or security?

By Eugene Goroshko

Originally appeared in Game On! Issue 5, The John Marshall Law School’s Video Game Law Society Newsletter. Published April 4, 2016.

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