This past month, pursuant to an ongoing criminal investigation, the Justice Department in the Eastern District of NY requested an order to compel Apple to “disabl[e] the security of an Apple device that the government has lawfully seized pursuant to a warrant.” A New York federal judge has raised the question over how much legal authority the government has to force Apple to unlock a criminal suspect’s iPhone and access the user’s data. This particular case involves Apple contesting a search warrant from federal prosecutors to unlock an iPhone 5s that belonged to a defendant in a meth conspiracy case.
Prosecutors claim that only Apple has the capability to unlock the phone without damaging the data, while the Drug Enforcement Administration and FBI have found it impossible to unlock the phone, which requires a passcode. Prosecutors argue that the All Writs Act, dating back to 1789, gives the court the broad authority it needs to carry out this order. The All Writs Act has been used hundreds of times in the past to allow courts to compel third parties’ assistance to execute an order of the court. The judge in this specific case is conflicted in the matter over whether the government can force the company to unlock passcodes of locked iPhones, when a private company should be free to choose whether to promote its customers’ interest in privacy as opposed to supplying the government with thousands of files of private information. Prosecutors also argue that because Congress has not explicitly banned the government from getting this type of help from tech companies, it should be allowed under the law. U.S. Magistrate Judge James Orenstein is not convinced of this argument. His doubts stem from concerns about separation of powers; specially mixing legislative authority in the court system. The judge also has concerns about how far the All Writs Act can be stretched to fit the needs of prosecutors.
Apple has taken the position that aiding the government in this instance would tarnish the company’s brand and damage it’s trusting relationship with customers. Apple has consistently helped the government in at least 70 court orders since 2008. “In the past if law enforcement cannot crack a seized iPhone, officers will in some cases mail the phone to Apple, who have been able to extract the data and return it stored on a DVD along with the locked phone.” Seizure and search of a suspects iPhone can reveal, detailed personal information such as the contents of text messages, call logs, photos, videos, web history and hundreds of previous locations collected from cell towers or Wifi networks. The seizure of this type of information does require a warrant. The authority forcing a third party private entity to engage and cooperate to unlock a device does not come from a warrant. A warrant allows the seizure of material but if the “material or the object requires further processing to produce data, that act would not be covered under the power of a warrant.
Marc Zwillinger, a lawyer for Apple, has said that because the phone is in possession of the government and not Apple, it would essentially make Apple “forced to become an agent of law enforcement.” This is the first time Apple has been asked about it’s views on this matter. Zwillinger claims that there is no “indication Congress intended for the government to have this power” and that “this is pushing the law to a new frontier.” Lawyers claim forcing the tech company to extract data in this case, without clear legal authority, could threaten the “trust between Apple and its customers and substantially tarnish the Apple brand," Apple's lawyers wrote.
Judge Orenstien has questioned why Apple has never tried to fight these court orders in the past if releasing customer information to the government is so damaging to the company’s reputation. The company has expressed their inability to unlock phones running newer operating systems such as iOS8 and iOS9, even though the phone at issue is older. The inability to unlock newer phones is due to heightened encryption on the lock screen for iPhones, giving users increased privacy. Although the company has expressed that unlocking data stored on a device using the latest operating system is impossible, it has seceded that it has the “technical ability” to help law enforcement unlock older phones. Newer devices with newer software prevents anyone who doesn’t know the passcode to the device from accessing its data. This feature was adopted amid public debates surrounding technology information leaks.
Investigators fear that Apple’s choice to encrypt higher levels of software will be extremely burdensome to solving cases, making information that could help law enforcement impossible to recover. Apple feels that customers have the right to privacy and has updated its security since the infamous iCloud leaks. Prosecutors feel that the policy protects criminals, because it does not allow law enforcement to get into locked phones, even with a warrant. There is no longer “backdoor” access to these devices, only a user can unlock the phone with the correct passcode.
Tim Cook, Apple’s CEO, recently appeared on 60 Minutes. He explains the encryption of iPhones and the notion of a “back door”: “Here's the situation is on your smartphone today, on your iPhone, there's likely health information, there's financial information. There are intimate conversations with your family, or your co-workers. There's probably business secrets and you should have the ability to protect it. And the only way we know how to do that, is to encrypt it. Why is that? It's because if there's a way to get in, then somebody will find the way in. There have been people that suggest that we should have a back door. But the reality is if you put a back door in, that back door's for everybody, for good guys and bad guys.”
The defendant has since entered into a guilty plea, leaving the issue over whether Apple will be compelled to unlock the iPhone unanswered. In the future, the government may be forced to accept a locked phone for what it is: a private sphere of information that cannot be accessed by anyone but the user himself.
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