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Apple v. Federal Bureau of Investigation – Part II

As we discussed in part one of this issue, during the late morning of December 2, 2015, a couple armed with weapons walked into a banquet room filled with people.  At first, the attack was categorized as another mass shooting that ended in a large number of fatalities. As the investigation continued, however, more details emerged surrounding the couple.  The FBI concluded that they were “homegrown violent extremists” that had no connection to foreign terrorist organizations. They were merely inspired by such organizations and committed the attack by their own volition.

During the investigation, the FBI obtained Syed Rizwan Farook, one of the shooters, cell phone. The FBI was attempting to gain access to the information stored on the phone, but the method they employed locked them out. As a result, the FBI asked Apple if they were willing to create a program that would create a backdoor. This backdoor would disable certain security features and allow investigators to access Farook’s phone. Apple, however, refused to do so, citing consumer privacy. The FBI then successfully applied for a court order. The judge ordered Apple to create the software, but Apple filed an opposition. In response to the opposition, the Department of Justice applied its own court order, requesting the judge to require Apple to comply with the first order. The federal judge has yet to rule on the request.

Apple’s Argument

Apple’s primary argument against creating this backdoor is the risk on consumer privacy. Accordingly, creating this backdoor will create a precedent to allow government entities to hack into any phone for the sake of “national security.”  However, this may be a strategy to redeem its reputation after its involvement with National Security Agency’s PRISM program.  This program allows government agencies, including, but not limited to, the National Security Agency, to collect data from companies (e.g., Apple, Facebook, Microsoft, Verizon, AT&T).

Apple’s next argument is that the government is overstepping its authority in the All Writs Act. The All Writs Act was created in the 18th century allowing courts to make a formal legal order as long as it meets these four qualifications:

  1. If there is no statute, law, or rule that deals with the specific issue
  2. The business has a connection to the investigation
  3. Extraordinary circumstances
  4. Is compliance an unreasonable burden?

In an analysis of the four qualifications, the first three qualifications are probably satisfied.   First, there is no statute, law, or rule regarding iPhone’s encryption and bypass technology. Second, Apple is connected to the investigation because its product is involved in this case.  Third, the terrorist attack constitutes extraordinary circumstances.  Fourth, however, Apple may have a viable argument regarding whether compliance is an unreasonable burden.  In this case, the FBI is asking Apple to create new software that allows it to bypass the 10-Tries-And-Wipe technology. This would require Apple to allocate a number of its programmers into this project in order to design and test the program.  So, if the judge finds that creating the new software is an unreasonable burden, then the FBI is out of luck.

At our law firm, we assist clients with legal issues related to intellectual property, technology, and privacy.  You may contact us to set up an initial consultation.