Apple vs. The Department of Justice: Privacy Rights and the War Against Terror

On December 2, 2015, a terrorist attack occurred in San Bernardino, California in which 14 people were killed and another 22 were seriously injured. The FBI during its investigation recovered the iPhone 5c of Syed Rizwan Farook who was one of the perpetrators and wanted to conduct a forensic analysis to review all calls and messages. But, due to the iPhone’s security features, the F.B.I. has been unable to gain access to the data stored on Farook’s phone and is concerned the data could be permanently destroyed after 10 failed attempts to identify the password. The clear obstacle to law enforcement gaining access to the data was the encryption system on the phone.

Magistrate Judge Sheri Pym of the Federal District of Central California ordered Apple to create a piece of software that would allow the FBI to bypass the security features on an iPhone 5c. This special piece of software would act as a master lock or “skeleton key” capable of unlocking the phone without any of the security codes created by its user. Apple’s chief executive issued a statement only hours later saying Apple would refuse to comply with the Judge’s order.

The legal battle that has evolved between law enforcement and Apple over the ability to reach the content of Farook’s phone is not new. Law enforcement has repeatedly expressed concern over their ability to gain access to encrypted data to solve and prevent crime. Apple is concerned with protecting the privacy of those using their devices from unwanted intrusions. The CEO called the order an “unprecedented step” saying “we oppose this order, which has legal implications far beyond the case at hand.”

The battle of encrypted data started well before Mr. Farook’s iPhone 5c. In 2014, Apple and Google announced they had released new software with full disk encryption that prevented the companies from unlocking their own products. Police and prosecutors wanted the companies to develop a master key that could be used by law enforcement to get around the new encryption technology. The companies refused stating such a key would have grave consequences for users’ privacy.

In this latest round, the FBI relied on the All Writs Act of 1789 which allows judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. The government says the Act gives judges the ability to require third parties to execute court orders like the one issued to Apple. Along with other cases, the government cited a 1977 order requiring phone companies to help set up phone registers. A lawyer for Apple wrote a letter in October on a similar case arguing that the All Writs Act could not be interpreted to “force a company to take possession of a device outside of its control and perform services on that device, particularly where the company does not perform such services as part of its business and there may be alternative means of obtaining the requested information available to the government.”

Apple’s CEO Timothy D. Cook was more direct when he stated: “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 devices 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.”
This epic battle between Apple and the federal government will continue in the courts with a possible showdown in the United States Supreme Court. The case contains many fascinating issues involving the clash of privacy rights and the Government’s desire to fight terror. But, also. many questions exist. For example, does Apple have a “key” to unlock the passcode and encryption features on the iPhone even though it has represented that it does not exist? In addition, do the Feds have the ability to access the iPhone through a “back door” but are unwilling to disclose that it has this capability for national security reasons?

Whatever the final result, Apples has legitimate concerns about privacy rights and the Feds’ history of abusing technical advances, e.g. the Stingray (a portable cell tower) to circumvent constitutional safeguards contained in the Fourth Amendment.

Searches of cell phones and computer GPS systems and electronic surveillance are commonplace in criminal investigations. In today’s world, criminal defense attorneys must understand the methods law enforcement uses to investigate crimes to determine if your rights have been violated.

If you need a lawyer for a criminal or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

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