FBI v Apple
A research resource developed by Professor Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics, Georgia State University College of Law
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Cases - In the Matter of the Search of an Apple iPhone (C.D. Cal. No. CM-16-10 - )iPhone Used by San Bernardino Shooter
On February 16, 2016, the U.S. Department of Justice (DOJ) obtained an unprecedented court order that would have forced Apple to design and deliver to it software capable of destroying the encryption and passcode protections built into the iPhone. The DOJ asserted that this order was simply the extension of a warrant obtained by the Federal Bureau of Investigation (FBI) authorizing the seizure and search of any “digital device” found in a car used by Syed Farook, who had committed a mass shooting on December 2, 2015 at his place of employment, the Health Department for San Bernardino County, California. Farook had acted together with his wife, Tafsheen Malik, who posted on Facebook that day a statement pledging her allegiance to the leader of the Islamic State of Iraq and al-sham (ISIS), an entity designated as a foreign terrorist organization by the U.S. State Department. Both Farook and his wife died later that day in a police shoot-out.
The FBI found an iPhone in the car, but it was locked with a standard user-selected four-digit passcode. To prevent hacking, after nine failed attempts, that iPhone model had a built-in one hour delay for each successive attempt; it also had a feature that, if activated, would erase the encryption keys necessary for accessing stored data after a tenth unsuccessful attempt. The order required Apple to create for the FBI “signed iPhone software” that would disable the auto-erase and time delay features and allow passcode submissions via the iPhone’s wireless connections, permitting a “brute force” attack on the iPhone’s security systems that was likely to crack the passcode in a day. The claimed authority for such an order was a law passed by the First Congress in 1789, the All Writs Act, which gave federal courts power to issue “writs of scire facia, habeas corpus and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”
The San Bernardino shooting appeared to be the strategic opportunity the FBI was waiting for to break the iPhone encryption system. As early as October 2014 FBI Director James Comey had complained about Apple’s decision to encrypt by default information stored on iPhones, calling for “building a lawful intercept system” into the iPhone operating system. However, by September 2015 the White House had backed off from supporting a law to require smartphone companies to unlock phones because, according to Robert S. Litt, General Counsel of the Office of the Director of National Intelligence, “the legislative environment is very hostile today.” An unnamed senior government official told the media what was needed was “the perfect example where you have the dead child or a terrorist act to point to …”.
Not only had the FBI found a “terrorist act to point to”; it had also selected a case where no one would assert Fourth Amendment rights because not only was the iPhone’s user dead but its owner, the Health Department, consented to a complete search of the iPhone. However the FBI’s strategy backfired when Apple decided to fight back, and the issue captured the attention of Congress, the media, and the public.
Apple assembled a team of legal luminaries including former Solicitor General Ted Olson, who told CNN if Apple loses “it will lead to a police state.” He went on to explain: “[J]ust because you’re using the word ‘terrorism’, you don’t want to violate the civil liberties that all of us cherish. … [There has to be] a point at which the government just can’t get into your soul. We have got to have a stopping point.” Apple also rallied a wide variety of supporters, who filed seventeen friend of the court briefs in support of its motion to vacate, including other major computer and internet-based companies.
Id. Olson had special credibility in making these remarks; not only did he serve as Solicitor General for President George W Bush for the first four years of the “War on Terror” after the al Qaeda attacks on September 11, 2001, but his wife was one of the victims of that attack when the plane on which she was a passenger, American Airlines Flight 77, was hijacked and then crashed into the Pentagon. Taylor Goldenstein, High-profile attorney Ted Olson joins Apple's fight against FBI terror probe, L.A. Times (Feb. 18, 2016), http://www.latimes.com/local/lanow/la-me-ln-ted-olson-joins-apple-fight-against-fbi-20160218-story.html.
The briefs are available at http://www.apple.com/pr/library/2016/03/03Amicus-Briefs-in-Support-of-Apple.html. Amazon, AT&T, Cisco, Dropbox, eBay, Facebook, Google, LinkedIn, Microsoft, Mozilla, Snapchat, Twitter, WhatsApp, and Yahoo all signed on to amicus briefs. Id.
The day before the highly anticipated hearing on Apple’s opposition to the order the DOJ unexpectedly asked for an adjournment, telling the court “an outside party” had contacted the FBI offering a possible method for unlocking the iPhone without Apple’s assistance. A week later, on March 28, the FBI announced that it had been able to access Farook’s iPhone and the order against Apple was vacated at the government’s request.
In the Matter of the Search of Black Lexus IS3000 (C.D. Cal. Dec. 3, 2015), Search and Seizure Warrant (No. ED15-0451M), attached as Ex. 1 to In the Matter of the Search of an Apple iPhone (C.D. Cal. Feb. 16, 2016), Government’s Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search (No. CM-16-10).
James B. Comey, Director, Federal Bureau of Investigation, Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?, Brookings Institution (Oct. 16, 2014) (remarks as delivered available at https://www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course ) (video available at https://www.brookings.edu/2014/10/16/watch-fbi-director-james-comey-on-technology-law-enforcement-and-going-dark/)
Eileen Nakashima & Andrea Peterson, Obama faces growing momentum to support widespread encryption, Washington Post (Sep. 16, 2015); see also James B. Comey, Director, Federal Bureau of Investigation, Statement Before the Senate Committee on Homeland Security and Governmental Affairs (Oct. 8, 2015) (available at https://www.fbi.gov/news/testimony/threats-to-the-homeland) (although “the use of encryption .. is an area of continuing focus for the FBI[,] … the administration is not seeking legislation at this time.”)
Government’s Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search, Feb. 16, 2016
Order Compelling Apple Inc. to Assist Agents in Search, Feb. 16, 2016
Amicus Briefs in Support of Apple
Letter from David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, United Nations Human Rights Council, March 2, 2016
Government’s Ex Parte Application for a Continuance, March 21, 2016 (outside party offers possible method to access iPhone, requests continuance)
Government’s Status Report, March 28, 2016 (government no longer needs assistance of Apple, requests that order be vacated)