On February 16, 2016, a federal judge ordered Apple to assist the FBI with defeating the security features on an iPhone used by one of the San Bernardino shooting suspects. Though the case is likely years away from being settled, it could have major implications for the future of encryption, privacy law, and other technology law issues.
Our law students, though not yet practicing lawyers who are able to give legal advice, have some poignant things to say on the subject. This week, students in Professor Cookie Ridolfi’s Criminal Procedure Law class discussed the case and what it could mean for the tech and legal communities.
One unique aspect in this case is the use of the All Writs Act by the federal judge to mandate Apple’s compliance with the FBI. (Santa Clara Law recently posted copies of the All Writs Act and court orders.)
“Applying a law from 1789 to today’s technology is a little difficult,” said student Tyler Seymour, ‘16.
The public approach taken by both the FBI and Apple also affects the arguments taking place.
Referring to this case, student Laurence Meloty-Kapella, ‘16 said, “I don’t think this is an issue of privacy, per se. It’s an issue of whether the government can force a company to deliver private information” in the future. “It’s beneficial for [Apple] to make it seem like it’s a privacy issue.”
“There’s a bit of a publicity spin on this issue to make it a little different and a little bit bigger,” Meloty-Kapella said.
“Both how Apple and the government act in this case will dictate public perception of this issue,” said Alaric Stein, ‘16.
Some members of the tech community, such as security leader John McAfee, have offered to assist the government in accessing data on the phone. However, the FBI has not publically sought the assistance of these individuals. “If they really wanted to, [the FBI] could take up John McAfee’s offer to decrypt the phone in three weeks, but it sounds like the government actually does want this master key they could use for other investigations,” said Francisco Lozano, ‘17.
“It’s not just Apple’s ‘distortion field’ on privacy that’s important,” said student Trevor Mead, ‘16. “[This case] has international implications. There’s a major international treaty called the EU Safe Harbor that regulated data going from the EU to the US which failed in part due to concerns of the US government having unfettered access to EU citizens data that comes into the US through – in that case – Facebook.
“The privacy industry is pushing for privacy by design where, for example, in new iPhones, security is baked into these things so that’s just the new standard. This case seems to be giving the conflicting message that privacy should be broken by design in the interest of national security,” Mead said. “It’s fine if the FBI wants to assert their authority, but it severely hampers the ability of the US to participate in international trade.”
Some students wonder if the FBI needs Apple’s help at all, or whether this case is intended to set a precedent that could be used in future cases.
“Once the key is made, the amount of burden on Apple to do it again is significantly diminished,” said Kendra Conner, ‘17. “Right now, the standard is ‘unreasonable burden,’ whatever that means. Part of the burden is that they don’t have a key,they have to create it still. Once they make one, it significantly diminishes that burden, especially if that’s the aspect you’re going to look at.”
“It kind of opens this huge door to compel just about any company to do anything [government agencies] want if they say it’s for national security,” said Alex Promm, ‘17.
“Something I can’t understand is what the FBI can get off this phone that would be relevant that it can’t access through other means,” said Mead. “They have the content of the emails from the employer, and they have all the metadata for who the suspect called from the phone company. So what’s left that’s on this phone that they need?”
“In my reading on this subject, I found that Apple does not want to create this because it creates an inexorable backdoor,” said Promm. “Once it’s created, it can be stolen or exploited by just about anyone. There’s a huge security risk for them even creating this.”
Finding a solution, some students think, would require more than a court order.
“I personally just don’t think this in an issue for courts to decide,” said Matthew Wes, ‘17. “I think the courts should acknowledge this case is dealing with such massive implications, and it should go to the legislature instead.”
“If there really is a legitimate national security interest involved, congress will act, and congress will pass a law,” Wes said. “Supposedly congress represents the people, so in that case, we can get a true representation of what people think.”
Some students feel this battle dives even further into a shared national ideology.
“Taking the long view, our nation was founded on a mistrust of government,” said student Nikki Webster, ‘16. “Currently, terrorists are the enemy, national security is our friend, and government is protecting us. But when government ceases to be our friend, they have this power to compel information access, then things aren’t so good. Privacy protects more than just our own feelings about being autonomous and free citizens, it maybe also keeps us free.”
“Just think about that burden of compliance for Apple,” said Tyler Seymour, ‘16. “If they’re forced to, would they lose a lot of customers because of this, and is that burdensome?”
Special thanks to our students for participating in this lively, informative discussion.