THE WRIT TO REFUSE. The Writ to Refuse 429

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1 THE WRIT TO REFUSE The Apple, Inc. iphone Controversy (2016) Introduction In December of 2015, FBI agents were investigating a domestic terrorist attack in which a married couple attacked a government center in San Bernardino, California, and discovered an Apple iphone belonging to one of the suspects. The FBI then contacted Apple to ask the company to help access the phone s contents without triggering a security feature that would erase all data on the phone if an incorrect password was attempted too many times within a short period of time. Apple told the FBI that they would be happy to help, but that they did not have a system in place that would allow the company to bypass the security on the phone. The FBI then asked Apple to build a program that would provide a back door to the phone s security, a process discussed in Chapter 21. Apple refused on the basis that building such a program would essentially mean providing the FBI with the ability to unlock any iphone and because the existence of a master key program like the one the FBI wanted was too dangerous to Apple customers, who might be compromised if the master key program fell into the wrong hands. A federal judge then ordered Apple to comply with the FBI order, citing precedent in the 1789 All Writs Act, which gives the government the power to compel citizens to obey rules in ways not explicitly described in existing laws. The source for this chapter is an article written by journalist Danny Lewis in a February 2016 issue of Smithsonian Magazine, entitled, What the All Writs Act of 1789 Has to Do with the iphone. Lewis focuses less on the contemporary controversy and more on the history of the 1789 All Writs Act, other historic attempts to use the law by the federal government, and the legal implications of using the more than 200-year-old law to compel a modern company to essentially work for the state.

2 Topics covered in this chapter include: Encryption Corporate rights Digital privacy Domestic terrorism This Chapter Discusses the Following Source Document: Lewis, Danny. What the All Writs Act of 1789 Has to Do with the Senator Frank Church leads a series of hearings iphone. about Smithsonian. the secret NSA SHAMROCK Smithsonian Institution. Feb. 24, Congress passes the operation in place since 1945 that involved 1978 FISA Act intercepting communications from American citizens

3 431 The Apple Inc. iphone Controversy (2016) In December of 2015, 28-year-old U.S. born Syed Rizwan Farook and his wife, 29-year-old Pakistan-born Tashfeen Malik, attacked the Inland Regional Center of San Bernardino County, during an employee holiday party. Armed with semi-automatic rifles, pistols, and pipe bombs, Farook and Malik killed 16 people and injured 24 before both were killed by police after a chase and shootout. In the wake of the tragedy, police struggled to figure out whether Farook and Malik were members of a radical cell, or were lone-wolf radicals inspired by, but not belonging to, a larger group. The international radical group known as the Islamic State (also known as ISIS or ISIL or the Daesh) issued a statement through the organization s Amaq News Agency claiming responsibility for the attack, and U.S. President Barack Obama is seen on television in the home of Helen Medina, during his nationally-televised address from the White House about terrorism follow ing the attack on the Inland Regional Center on December 6, 2015 in San Bernardino, California. Medina hid in her home as the police engaged in a gun battle with terror suspects on her street; police killed the terror suspects that attacked the Center in San Bernardino that left 14 people dead and 21 injured on December 2. (Photo: Joe Raedle/Getty Images) The Intelligence Oversight Act (IOA) updates legal standards regarding federal President Reagan s E.O. authorized The Electronic Communication Privacy Act is

4 432 National Security vs. Civil & Privacy Rights investigators were concerned that Farook and Malik might have been part of a larger terrorist cell. As part of the investigation, the FBI obtained an iphone 5 belonging to one of the two assailants and hoped to gain access to the phone to learn more about the assailants. The iphone discovered among the assailants possessions had a security feature, generally called a self-destruct mechanism, that automatically erased all data from the phone if an incorrect password was entered 10 times. In an effort to avoid possibly erasing the data stored on the device, the FBI contacted Apple, Inc., asking the company to help bypass the phone s security. Apple explained to investigators that the company did not have a tool that could be used to bypass the self-destruct mechanism and so the FBI asked Apple to create a new, specialized software program that would run off of the phone s RAM and would allow investigators to enter possible passcodes without activating the self-destruct mechanism built into the iphone s operating system. Apple refused the request on the principle that building such a program would be akin to building a master key that could potentially be used to unlock any iphone. The FBI then took their case to the courts. In February of 2016, Justice Sheri Pym of the US District Court of Central California, issued a court order requiring Apple, Inc. to comply with the FBI request. This ruling, based on an obscure legal precedent known as the All Writs Act of 1789, demonstrated considerable creativity on the part of the courts and raised interesting legal questions about ownership of digital data and the rights and responsibilities of corporations. 142 In this article, from Smithsonian Magazine on February 24, 2016, New York technology journalist Danny Lewis describes the current and historic use of the All Writs Act, and discusses the possible consequences of the federal ruling on the San Bernardino case. Netscape creates the cookie allowing computers to monitor The September 11 terrorist attacks result in Congress authorizing the Bush Administration to utilize military methods to combat terrorism

5 433 WHAT THE ALL WRITS ACT OF 1789 HAS TO DO WITH THE IPHONE: HOW A LAW SIGNED BY GEORGE WASHINGTON IS BEING APPLIED BY GOOGLE by Danny Lewis Smithsonian Magazine, February 24, 2016 Source Document The ongoing battle between the United States government and Silicon Valley tech companies over encryption exploded last week when a federal judge ordered Apple to unlock an iphone. In doing so, the government invoked a 227-year-old law signed by President George Washington, himself. But what does one of the United States earliest laws have to do with the latest in communications technology? To make a long story short, Apple has so far refused to comply with government agents, who have demanded that the company helps break the encryption on the iphone that belonged to one of the San Bernardino shooters responsible for killing 14 people in California, last year. Since the attacks, the F.B.I. has received a warrant for the information on the iphone, but they have been stymied by its encryption, which is why they re looking for Apple s help. In an attempt to make Apple create a backdoor into the phone s operating system, the U.S. government has invoked the All Writs Act of The legal issues around the All Writs Act are complex, but at its core, it gives federal judges the power to issue orders to compel people to do things within the limits of the law, Eric Limer writes for Popular Mechanics. In its original form, the All Writs Act was part of the Judiciary Act of 1789, which established the federal justice system from the Supreme Court down to the lower federal courts. The All Writs Act allows federal judges the power to issue court orders, which makes sense considering that writs is an old-fashioned term for formal order. At one point in history, writs were fairly common, but over the centuries, courts have tended to use them only in extraordinary circumstances where there are no other laws that apply to the situation at hand, such as this case, where the government wants access to information in a password-protected cell phone. The vagueness built into the All Writs Act has leant itself to new readings throughout American history, Laura Sydell reports for NPR. The law actually seems to be keeping up with technology by being

6 434 National Security vs. Civil & Privacy Rights What the All Writs Act of 1789 Has to do With the iphone: How a Law Signed by George Washington is Being Applied by Google continued so broad that we re just reinterpreting it all the time, Irina Raicu, director of the Internet Ethics Program at Santa Clara University s Markkula Center for Applied Ethics, tells Sydell. The government has cited the All Writs Act in the past, from a 1977 ruling forcing phone companies to help set up devices that record all numbers called from a specific phone line to the Wireless Communications and Public Safety Act of 1999 which required all cellphone providers to be able to geolocate their customers phones. The writ does have its limits: a federal judge ruled in 2005 that the All Writs Act could not be used to force a phone company to allow real-time tracking of a phone without a warrant, Eric Lichtblau and Katie Benner report for the New York Times. Whatever the result of this current case, the dispute will have major legal implications for the fight over encryption in the future. While the F.B.I. says the court-ordered bypass, which would have Apple create software to disable the feature that wipes the data on the phone after 10 incorrect password attempts, would only be used in this particular case, Apple s chief, Timothy D. Cook recently fired off an open letter arguing that allowing this would set a dangerous legal precedent for user privacy in the future In the open letter issued by Apple CEO Tim Cook, Cook explains the company s perspective on the issue, the potential security issues involved and claims that the company s primary interest is in ensuring the future security of Apple s products, while also taking a stand against what Cook calls governmental overreach. Critics doubted that Apple was as concerned with customer privacy as with protecting the technological innovations built into the company s devices. In his open letter to Apple s customers, Cook asserts that encryption is an essential consumer technology: The best measure available to consumers to prevent cybercrime and the exposure of potentially damaging

7 435 personal data. While acknowledging the legitimacy of the FBI s goals, and the company s desire to help to prevent terrorism, Cook explains that the FBI s request is not simply for Apple Inc. to bypass security on a single device, but rather, to create a key that could be used to unlock any device. This backdoor key, Cook argues, is too dangerous to customer safety to create and Cook expresses doubt that the government, Apple, or any other entity would be capable of keeping such a program safe and out of the hands of cybercriminals. Furthermore, he argues that there exists no clear legal precedent that would allow the government to compel a company to create a product dangerous to their own customers. Cook's argument, that the FBI was asking for something we simply do not have, and something we consider too dangerous to create, gets to the heart of the long-standing debate over the legality of encryption and whether corporations had a responsibility to help or facilitate access for government and law enforcement. Cook essentially argues that there should be no master key available to anyone, whether a company or a government agency, because the very existence of such a mechanism poses too great a risk to personal privacy. Consider, for instance, that a data breach at Apple, Inc, or one from the federal government (of which there have been many) could result in the master key program falling into the hands of hackers or cybercriminals. Further, privacy advocates have long warned about the dangers of enabling the state to develop powers or technologies that might be used to curtail basic liberties, unless proper safeguards to prevent misuse had already been developed and established. This effort, despite sometimes generating controversy, is in keeping with the fundamental founding principles of the United States. Therefore, while Apple's CEO says, we believe the FBI's intentions are good, placing limits on governmental abilities is not only about whether the people trust their current government, but are meant to address the future as well, when unforeseen cir- The Bush Administration plans to make data taken from spy satellites available to law enforcement and thus to enable spy satellite equipment to be used to Congress passes Section 702, or the FISA Amendment Act, which is used to permit a massive NSA and CIA domestic surveillance program gathering telephone and Internet data from millions of

8 436 National Security vs. Civil & Privacy Rights cumstances might lead to an administration willing and able to use such tools for oppression. A third issue also arises from the government's use of the All Writs Act, which simply states that the federal government is empowered to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law. Writing about the issue in The Guardian, journalists Neil Richards and Woodrow Hartzog argue that the All Writs Act is a piece of Swiss Army knife legislation that the FBI is trying to turn into a giant sword. Hartzog and Richards explain that the act was part of a series of clauses meant to establish the legal right for the government to exceed the powers given within the constitution, but only to the point at which the government utilized powers necessary and appropriate to the situation. The power to compel a company to create new software isn t included in the FBI s legal mandate and Judge Sheri Pym therefore utilized a catchall rule to argue that the FBI could legally exceed the powers given to the agency by existing U.S. law. Hartzog and Richard thus argue: If the FBI wants new powers to break the security of our digital technologies, let it demand a law from Congress. And then we can submit that law to the courts to make sure it is constitutional. 144 The government s attempts to force Apple to create new software also raises another important issue involving civil liberties; whether the state has the right to compel a company, or a person, to work in service of the state? In other words, can the government simply order a car manufacturer, or a baker, or an oil painter, or a watchmaker, to create something for the government? What if the person has moral or ethical objections to the request? What if the person simply doesn t want to work for the government? Does a person or company have the right to refuse? In the case The Obama Administration proposes a Consumer Privacy Bill of Rights guaranteeing individuals the right to greater control over the use of their digital data, forming the basis of a The Guardian and the Washington Post publish the first series of articles derived from leaked NSA and CIA documents

9 437 of the Apple Inc. controversy, the courts ruled that the FBI had the right to compel Apple Inc. to work for the state. The justification or reasons for the FBI s request may have played a role in this specific case, but such considerations are immaterial to the broader question, which has far reaching civil liberties implications. 145 In the end, after Apple s refusal, the FBI announced that it had found another way to bypass the phone s security system and the issue of whether Apple would be forced to comply became moot. The case, however, raised a host of important questions regarding privacy and security that were never resolved. Apple was widely praised by some for standing up to the government s perceived overreach, while also criticized by those who believed the company was refusing to help a government agency combat a legitimate, imminent threat to national security. Others believed that Apple s decision was based purely on the desire to protect company secrets and so criticized Apple for placing the company s well-being ahead of security and public concerns. Whether Cook and Apple, Inc. were motivated by selfish concerns, or were legitimately interested in the broader privacy and civil liberties issues is also unimportant in exploring the significance of the case. Whatever the reasons, the civil liberties questions raised by the case are important in determining when and to what degree national security concerns can be used to compel behavior. Public opinion on the Apple issue was mixed and complex. In a 2016 article in The Atlantic, journalist Krishnadev Calamur explored opinion polls on the issue. In a Pew Research poll, 51 percent believed that Apple should comply with the government s orders, though Calamur raised an interesting point in noting that the way in which the question was raised influenced the way people responded to the issue. The original question asked: The Senate Judiciary committee holds hearings to determine if the executive surveillance operations carried out under the PATRIOT Act were a Snowden leaks reveal that the NSA and CIA had been attempting to force corporations to provide a backdoor to encryption systems that would allow

10 438 National Security vs. Civil & Privacy Rights As you may know, the FBI has said that accessing the iphone is an important part of their ongoing investigation into the San Bernardino attacks, while Apple has said that unlocking the iphone could compromise the security of other user s information, do you think Apple: Should unlock the iphone Should NOT unlock the iphone Don t know/refused. In answer to the question phrased in this way, 51 percent said Apple should unlock the phone. However, in a Reuters/Ipsos poll, the question was phrased: Apple is opposing a court order to unlock a smart phone that was used by one of the shooters in the San Bernardino attack. Apple is concerned that if it helps the FBI this time, it will be forced to help the government in future cases that may not be linked to national security, opening the door for hackers and potential future data breaches for smartphone users. Do you agree or disagree with Apple s decision to oppose the court order? When phrased in this way, 46 percent supported Apple, and 35 percent supported the government, with 20 percent uncertain about the issue. 146 The difference in phrasing of the two questions could be seen as constituting a shift in focus as well. When emphasis is placed on the FBI s justification in the specific case, more Americans supported the FBI s argument, whereas, when emphasis was placed on Apple s objections, Terrorist attacks in France reignite fears The PATRIOT Act is replaced Federal Courts order Apple, Inc. to create a new operation system that would enable federal investigators to bypass security on an iphone. Apple refuses on the

11 The FCC publishes official rules of The EU establishes the General Data Protection Regulation (GDPR), described as the strongest digital data privacy law in the world 439 more respondents were willing to accept Apple s position on the issue. In March, a Wall Street Journal poll demonstrated a nearly even split on the issue, with Republicans favoring the government by a margin of 57 to 37 percent, while Democrats favored Apple by a margin of 50 to 40 percent. Independent voters, however, strongly sided with Apple, by a margin of 58 to 28 percent. 147 While the Bernardino iphone case was proceeding, the Department of Justice (DOJ) also called on Apple to help bypass security on an iphone belonging to a drug dealer involved in a conspiracy case in New York City. In the case, the DOJ again attempted to argue that the All Writs Act gave them the power to compel Apple to comply with their request and Apple attorneys again refused to help unlock the device. Federal Judge James Orenstein rejected the DOJ s request, holding that the All Writs Act could not legitimately be used to order a company to manipulate its products. The implications of the government s position are so far-reaching both in terms of what it would allow today and what it implies about Congressional intent in 1789 as to produce absurd results. 148 Be Careful What You Say Be On Your Guard, WWII Careless Talk poster. (Photo by The National Archives/ SSPL/Getty Images)

12 440 National Security vs. Civil & Privacy Rights CONCLUSION The Apple iphone controversy of 2016 intensified the existing debate over encryption and the right to hide from governmental intrusion. Apple Inc. refused to comply with the government s order, despite the court ruling that used the All Writ s Act as precedent, arguing that the existence of a master key like the one that federal government wanted was too dangerous to consumers and violated privacy rights protections. The suit never came to trial, as the FBI claimed later that they had discovered another way to bypass the phone s security mechanisms. Studies of public opinion about the incident found that the public was broadly supportive of the FBI s desire to conduct a thorough investigation, especially because the case involved domestic terrorism, but that, in general, the public remained skeptical of the federal government s overall commitment to privacy and/or ability to properly secure sensitive information.

13 441 DISCUSSION QUESTIONS Should American citizens have the right to use encryption products that the government cannot bypass? Why or why not? Was the All Writs Act an appropriate legal justification for the request made by the FBI? Explain your answer. Do you trust the federal government to have a master key that would allow federal agents to bypass security on any phone? Why or why not? Was Apple Inc. justified in refusing the FBI s request? Why or why not? Works Used Ackerman, Spencer, Thielman, Sam, and Danny Yadron. Apple case: judge rejects FBI request for access to drug dealer s iphone. The Guardian. Guardian News and Media. Feb. 29, Web. 4 Nov A Message to Our Customers. Apple. Apple, Inc. Feb. 16, Web. 31 Oct Calamur, Krishnadev. Public Opinion Supports Apple Over the FBI or Does it? The Atlantic. Atlantic Monthly Group. Feb. 24, Web. 4 Nov Musil, Steven. Apple has support of independent voters in FBI iphone battle. CNET. Mar. 8, Web. 4 Nov Richards, Neil, and Woodrow Hartzog. Apple v. the FBI: why the 1789 All Writs Act is the wrong tool. The Guardian. Guardian News and Media. Feb. 24, Web. 30 Oct Sorkin, Amy Davidson. The Dangerous All Writs Act Precedent in the Apple Encryption Case. The New Yorker. Conde Nast. Feb. 19, Web. 31 Oct Zetter, Kim. Magistrate Orders Apple to Help FBI Hack San Bernardino Shooter s Phone. Wired. Conde Nast. Feb. 16, Web. 31 Oct