U.S. v. Apple: The FBI Has Bitten Off More Than It Can Chew

If you have read a paper, watch the evening news or surfed social media in the last week you know that the FBI and Apple, Inc. are involved in a heated battle concerning access to a locked iPhone. While many are discussing the positive and negative impact of such action, very few have considered whether the order is even valid.

On Feb 16th, the U.S. Attorney’s Office (L.A.) obtained a court order from a U.S. Magistrate ordering Apple, Inc. to assist the government in completing a search of an iPhone 5c recovered from San Bernardino shooter Syed Rizwan Farook. At the center of the argument is a little-used portion of the Judiciary Act of 1789 known as The All Writs Act, which authorizes the courts to issue all necessary writs needed to assist the government in its investigations. Because there is little case law on the matter, the use of this Act appears to be a tactical move on the government’s part to obtain what would otherwise be a thinly supported search warrant. But the little bit of case law which does exist does not appear to be in the government’s favor.

U.S. v. New York Telephone Co. 434 U.S. 159 (1977)

One of the few cases involving orders issued under the All Writs Act appears to be very similar to the current case involving Apple and the government’s success in this earlier case likely prompted this current course of action. In this earlier case, the government requested the court compel the New York Telephone Co. to assist the government in the installation of a pen register – a device which would record all numbers dialed from a particular phone.

Although the government was successful in its case against NY Telephone, the Supreme Court also established a three-prong test to determine when success assistance could be ordered:

  1. The party ordered to perform an action cannot be too far removed from the case
  2. The government’s request cannot impose an undue burden on that party
  3. The party’s assistance must be necessary

The Court stated that such assistance would be limited to “reasonable technical assistance” and allowed that party to seek reimbursement for expenses.

Apple IncU.S. v. Apple, Inc.

So does this current case meet the requirements established by the Court in U.S. v. NY Telephone Co.? No, I do not believe it does and here is why:

  1. Apple is obviously not “too far removed” as they manufactured the phone in question but that appears to be the extent of the government’s argument.
  2. Apple has repeatedly stated that it does not possess a program which allows passcode locked iPhones to be opened without the loss of data. If this is true, and the government does not argue it is not, it means Apple would not be assisting the government by installing an existing piece of technology as it did in NY Telephone Co. but instead engineering new technology. This would clearly impose an undue burden on Apple. This also raises the issue of providing “reasonable technical assistance” as discussed in the earlier case. Where does the court draw the line with “reasonable?” The government is not only asking Apple to spend untold man hours to develop a new operating system, but to risk potentially collapsing its very business model which depends on providing secure cellular service.
  3. In the 40 page brief supporting its request, the U.S. Attorney’s Office stated: “Apple has exclusive technical means which would assist the government in completing its search, but has declined to provide that assistance voluntarily.” Neither the US Attorney nor the FBI has ever stated that only Apple can open the phone, just that it would be easier with Apple’s assistance. The FBI, or NSA for that matter, employs their own hackers, and one would assume they would be able to eventually gain access.  If time is the issue, antivirus software giant John McAfee has even stated his team would decrypt the phone for free so that Apple would not need to do so – something he claims could be completed in just 3 weeks. If this is true, then Apple’s assistance is not necessary, but just preferred.

FBI LogoBased on this evaluation, I do not believe the government has met the requirements for even obtaining an order under the All Writs Act. The fact that they did get the order only means Apple will need to appeal, something which I am not alone in believing they will be successful. But, let’s assume for a second the FBI is successful; where will that lead?

If the FBI is successful, what do they hope to gain from accessing the iPhone of a dead terrorist? There is no pending criminal act to interrupt or fugitives to track down; both terrorists are dead and believed to have acted alone. Although there is speculation they were influenced by ISIS organizations, knowing that is not worthy of rewriting the Constitution.  Plus, if such access were to be ordered once, it would undoubtedly be requested again next time there was a terror threat, missing person or sharing of child pornography. Before you know it, accessing electronic devices would be as commonplace as searching a car at the border.  In the end, cellular data, texts and phone records would be an open record able to be accessed with little more than a judge’s signature and a promise it is necessary “for the greater good.” The investigator in me has to admit this is a tempting prospect. The private citizen who uses a cellular phone for everything from flirting with my wife to managing my bank accounts shutters at the thought.

This single case is unlikely to be the end of the fight, but merely the first battle in a looming war. Congress is already discussing whether it needs to become involved, by which I mean writing a new law which would mandate manufacturers install “backdoors” that would permit law enforcement access to otherwise encrypted devices. Of course, we all know how unnecessarily complicated issues become once Congress is involved.

Disclaimer: The content in this article is the opinion of the writer and does not necessarily reflect the policies or opinions of US Patriot Tactical.

Tom Burrell

Tom enlisted in the US Marine Corps Reserves in 1987. Following service in Desert Storm, he transitioned to active duty with the US Coast Guard. In 1997 he left the USCG to pursue a position in conservation & maritime law enforcement. Tom is currently a Captain and he oversees several programs, including his agency investigation unit. He is also a training instructor in several areas including firearms, defensive tactics and first aid/CPR. In 2006 Tom received his Associate’s Degree in Criminal Justice from Harrisburg Area Community College and in 2010 a Bachelor’s Degree from Penn State University.
Tom Burrell

1 thought on “U.S. v. Apple: The FBI Has Bitten Off More Than It Can Chew

  1. Tom, a few observations:-

    Apple is the least risky option in this matter as they built the phone, developed its software and therefore have the best knowledge of the system’s strengths and weaknesses.

    Whether legislation is old or new is irrelevant in a legal sense. It is the prevailing law. Unless the legislators choose to include a sunset clause, a law does have a ‘use by’ date.

    The court has the power to make orders in accordance with the prevailing law. The govt started out at the lowest level because that is where most of the work of the courts is done. Yes, this matter may well end up in the Supreme Court, but that does not mean that it should start out there.

    This is a test case. There are no ifs and maybes. This arises out of a terrorist incident, not just a possible future incident. The govt likely chose this case because it starts out on solid ground. Those involved in the incident are dead. They pose no ongoing or future threat, although I am at a loss as to how anyone can say that no one else is involved. That is presently unclear.

    It is preferable to run a test case where the threat has been largely terminated becaus this case may take years. The last thing the govt would want is to have an incident afoot, a real and present danger and a five year wait to ge the answer they need. A lot of people could die in that time.

    The mobile phone is no longer simply a communications device. While it is analogous to the device first used by Alexander Bell way back, it is now a more powerful computer than that used to give Apollo 11 to the moon. It has so many more functions than merely allowing one person to say ‘hello’ to another over a distance. We need to start looking beyond old paradigms to see these devices for what they are – sophisticated information storage and communication systems. Systems that criminals, terrorists and enemies use everyday to threaten peace and our way of life.

    The activities of successive govts since Nixon in spying on the people for no good reason has left us sensitive to having our privacy invaded unnecessarily. Yet I believe that the curren case USA necessary invasion, the privacy relates to a dead person, there is no doubt ha they were an enemy, and the govt is making its case in public in the courts, not behind closed doors, as has been the case so often in th past.

    My last point is this. Do you want a situation where a corporate entity like Apple thumbs it’s nose at the courts with impunity? The political right has always had a concern about unfettered power being exercised by a very few without accountability. Apple is setting itself up to do just that. We didn’t get to vote for their board. At least we get to vote for politicians. Think about it. As much as you feel uneasy about the govt, at least we put them there. Who made Apple God?

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