Question: FBI Orders Apple to Unlock iPhone

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik burst into a holiday gathering of county employees at the Inland Regional Center in San Bernardino, California, and began shooting-ultimately killing 14 people and wounding another 21. In the hours after the attack, the couple became involved in a shootout with police, and both were killed. With their deaths, the investigation into the deadliest terrorist attack in the United States since September 11, 2001, entered a new phase, as hundreds of FBI agents in California and around the world began investigating the attackers' online and offline activities in the hours, weeks, and months leading up to the shootings. In addition to the stockpile of weapons and homemade pipe bombs found in the home of Farook and Malik, investigators found multiple electronic devices. While attempts had been made by the couple to delete data and damage some of the devices, FBI Director James Comey reported two weeks after the attack that investigators had found private messages between the two that showed their "joint commitment to jihad and to martyrdom." In addition, Malik posted a note on Facebook shortly after the shootings, pledging the couple's allegiance to the leader of ISIS, a terrorist network also known as the Islamic State.

In order to further investigate possible connections to extremist groups, the FBI attempted to access the data on an iPhone used by Farook. The phone, which belonged to Farook's employer, the San Bernardino County Health Department, was locked by a passcode, and neither the county nor the FBI were able to unlock the phone. The iOS software installed on Apple's phones allows only 10 unsuccessful passcode attempts before it wipes the phone's memory clean. This security feature prevented the FBI from attempting a "brute-force" attack, which is essentially a trialand-error method in which all possible passcodes are tried systematically until the correct one is uncovered.

In the weeks following the shootings, Apple representatives cooperated with the FBI's investigation, providing some older data backups from the phone as well as suggesting possible methods the agency could use to access the data on the phone itself. The company balked, however, when the FBI demanded that the company develop new software that would disable the functionality that wipes the phone's memory when too many wrong passcodes are entered in a row. The FBI also wanted Apple to eliminate the built-in delay between passcode attempts, which, by Apple's estimates, meant that a brute-force attack on a phone with a six-digit passcode could take more than five years to complete. The FBI's demand that Apple develop new software that would allow it to unlock the phone in this case is an extension of an ongoing debate about whether tech companies should be compelled to build a "backdoor" into their software that would allow the government to access data even when secure encryption has been used to protect it. Without it, some law enforcement experts warn, the United States could be faced with the prospect of what has been dubbed the "Going Dark" problem, which some experts fear would lead to the inability of law enforcement to access electronic data even with a warrant.

That concern was heightened for some when Apple announced in 2014 that it had altered its software so that it was no longer "technically feasible for us to respond to government warrants for the extraction of data from devices" running iOS 8 or later versions of that software. On February 16, 2016, a U.S. magistrate in California ordered Apple to assist the government by creating a custom version of iOS that would run only on the iPhone in question and that would provide the functionality demanded by the FBI. In its motion requesting the order, the Department of Justice cited the All Writs Act, a law signed by President George Washington, which, among other things, gives federal judges the power to issue court orders compelling people to do things within the limits of the law and which has frequently been used as the basis for court orders compelling telecommunications companies to install andoperate call-tracking devices. In its filing, the DOJ alleged that Apple "deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans."

Apple challenged the judge's order, arguing that it would set dangerous legal precedent. The company also issued a statement on its Web site that said, in part, "The implications of the government's demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone's microphone or camera without your knowledge." According to Apple, "Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government." The case took another turn before the scheduled court hearing on the issue in March 2016, when the Justice Department announced that it had successfully accessed the contents of the phone using a tool provided the government by an unnamed third party.

After its announcement, the Justice Department withdrew its motion to compel Apple to develop the requested software; however, according to a Justice Department spokeswoman, "It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails."

Critical Thinking Questions

1. Why did Apple object to the court order in this case? What was the government's rationale for compelling Apply to comply with the order?

2. Do you think Americans should be willing to surrender some of their privacy for increased security by allowing backdoors that enable law enforcement access to smartphones and other devices after a search warrant has been issued? Why or why not?

3. The FBI and Apple are involved in similar disputes in other cases, including one in New York involving an alleged drug conspiracy. Shortly before the government dropped its legal action against Apple in the San Bernardino case, the judge in the New York case ruled against the government, rejecting the argument that the All Writs Act gave prosecutors the authority to compel Apple to bypass the lock on the seized phone. Do your opinions about the issues involved in the San Bernardino case change when they arise in connection with a case that does not have national security implications? Why or why not?