In the past year, one Apple (AAPL) news story proved more memorable than the latest version of the iPhone. In February, the tech giant took a public stand against the FBI’s request that it unlock a gunman’s iPhone, and a weeks-long standoff ensued.
While the FBI eventually figured out how to access the phone without Apple’s help, it’s worth revisiting its fight against Apple. Other privacy disputes between the FBI and tech giants that guard your personal data and devices may very well play out in 2017 and beyond.
Moreover, on Jan. 20, the US will inaugurate a new president who called for a boycott of Apple products after it refused to help the FBI unlock the phone. Donald Trump, and his attorney general pick, Jeff Sessions, may end up valuing national security concerns over privacy, Cornell Law School professor Michael Dorf told Yahoo Finance.
”Even if all I cared about was security, it’s not obvious to me here that privacy is the enemy of security,” said Dorf, who teaches Constitutional law, among other subjects. “But I fear that the Trump/Sessions administration will simply view this through a conventional ‘law and order’ lens and regard assertions of privacy as simply impeding security.”
Of course, Apple also accused the FBI under the Obama administration of threatening the security of its customers’ data.
The dispute became public in February with a judge’s order mandating that Apple help the FBI unlock a phone used by a perpetrator of a mass shooting last year. Apple refused.
‘An unprecedented step’
In December 2015, 14 people were killed in a shooting at a state-run facility in San Bernardino, Calif., which injured 22 others. Treating the massacre as a terrorist attack, the FBI asked Apple for help unlocking an iPhone used by one of the two perpetrators.
When Apple balked at the FBI’s request, the US government filed a 40-page court document seeking to force the tech giant to unlock the phone used by Syed Farook, one of the two attackers along with his wife, Tashfeen Malik. Both died the day of their attack.
However, before they died, Malik expressed her allegiance to the Islamic State. US investigators believed Farook’s iPhone might hold clues about the attack on the Inland Regional Center, a facility for people with developmental disabilities. But the FBI couldn’t unlock Farook’s phone without his passcode. What’s more, agents couldn’t even try to guess the password. That’s because Apple gives users the option to have all their iPhone data erased after 10 failed passcode attempts.
“Apple has the exclusive technical means which would assist the government in completing its search,” the US government argued in its request to the court.
After a federal magistrate judge in California granted that request, Apple pushed back more. “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers,” Apple CEO Tim Cook wrote in an open letter to its customers on Feb. 16. “We oppose this order, which has implications far beyond the legal case at hand.”
The US government, Cook argued, wanted Apple to open up a “backdoor to the iPhone” by creating a new version of its operating system that circumvented security features. Apple could not take the risk that this “backdoor” might be used again to violate consumers’ privacy.
“[W]hile the government may argue that its use would be limited to this case,” Armstrong wrote, “there is no way to guarantee such control.”
The public weighs in on FBI v. Apple
Apple’s stand against the FBI’s demands drummed up tech-industry support but stoked some criticism, as well. University of Chicago professor law professor Omri Ben-Shahar, for one, suggested in the Huffington Post that Apple’s privacy crusade was a marketing ploy and stood at odds with the company’s practice of harvesting data for targeted advertising.
“This is awfully rich,” he wrote. “The industry that makes a highly profitable living off of people’s data, now parading as the crusader of privacy.”
Regardless of their motives, companies in that industry came out publicly to support Apple — including Facebook (FB), Google (GOOG, GOOGL), Microsoft (MSFT), and Amazon (AMZN). Those companies were among the dozens of companies and organizations that filed “friend of the court” briefs opposing the government’s efforts to enlist Apple to unlock the phone.
“The government’s position, if it prevails, will undermine the security of Americans’ most sensitive data,” stated one brief signed by the above-mentioned tech companies and several others including Yahoo Finance parent company, Yahoo (YHOO). Later, that brief added, “The government’s bid to have technology companies undermine their own security measures is all the more puzzling because the Executive has been encouraging companies to increase cybersecurity in consumer products.”
While one might assume consumers would also support increased cybersecurity, that wasn’t necessarily the case amid the FBI v. Apple showdown. In February, 51% of adults surveyed by the Pew Research Center believed Apple should unlock the iPhone to help the FBI. Just 38% of the 1,002 people surveyed thought the tech giant shouldn’t back down (the rest didn’t have an opinion).
It’s possible that many of the consumers in favor of the FBI thought it worthwhile to trade a little privacy to aid the government in investigating a terrorist attack. Still, as Michael Dorf, the Cornell law professor, told Yahoo Finance recently, sometimes “privacy is a form of security.”
“Making devices more vulnerable to law enforcement scrutiny could easily have the unintended consequence of making those same devices easier for foreign governments and criminals to hack,” added Dorf, who posts frequently on his blog Dorf on Law.
Indeed, hackers could theoretically access Apple’s theoretical “backdoor” software off of its own servers, The New York Times editorial board argued in an piece called “Why Apple was right to challenge an order to help the FBI.” In the end, Apple never had to create that software.
The government drops its case
In late March, the Justice Department revealed that a third party helped it unlock the iPhone — putting an anticlimactic end to a prolonged and public debate. Of course, the dispute over whether tech companies have to help investigators crack into their systems is far from over, especially since the California court never had an opportunity to weigh in on the Apple case. (Though a different judge, in New York, sided with Apple in a similar case in February.)
The case brought by the US government relied on a 227-year-old law called the All Writs Act, which says that courts can hand down “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
This essentially means that courts can order parties — like Apple — to comply with court orders. In a digital age, where orders like the one Apple received can have broad ramifications, the use of the All Writs Act can pose new problems and let the government wield seemingly infinite power. “If it can tell Apple, which has been accused of no wrongdoing, to sit down and write a custom operating system for it, what else could it do?” Amy Davidson noted in The New Yorker.
If the case had proceeded, Dorf told me, there’s a possibility Apple would have won given a Supreme Court ruling from 2014 finding cellphones can’t be searched without a warrant. “The Supreme Court rightly realized we’re in a new era,” he said.
Even if Trump is able to appoint multiple Supreme Court justices, there could still be more precedent aimed at protecting digital privacy. “For the most part, at least among legal elites, these issues do not have a clear left-right balance. Some of the conservatives are quite concerned about privacy,” Dorf said. Regardless of which way the Supreme Court goes, the issue of digital privacy will certainly reach the justices again. Even if Trump doesn’t like it, a justice (or justices) he appoints may end up curbing the kind of assistance the government can demand of tech companies like Apple.
Erin Fuchs is deputy managing editor of Yahoo Finance.