A Constitutional Battle on Encryption Brews After Apple Rejects Court Order

A California court order asking Apple to help break into the San Bernardino shooter's iPhone on Tuesday that has both Apple and the federal government invoking the Constitution, legal experts tell Newsweek.

The newest drama opens a new chapter into the recent struggle between the privacy-focused Silicon Valley firms and the intelligence agency repeatedly asking for backdoor access to encrypted data on the iPhone of one of the San Bernardino shooters. The FBI has been holding the phone for more than two months but has been unable to access the data on it, simply because it has the newest iOS 9 on it. Since iOS 8, iPhones lock out users if they get the passcode wrong to many times and can be set to erase the data entirely.

The core of the legal issue may be a clash between the First Amendment and the All Writs Act—a law from 1789 that allows courts to issue commands, or writs, to aid the government. Another factor is whether Apple and other companies are technically able to crack the encryption in the first place.

Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California on Tuesday ordered Apple to provide "reasonable technical assistance" to bypass security functions on the iPhone 5C used by shooter Syed Rizwan Farook. A few hours after the court order, Apple CEO Tim Cook published a public statement, opposing the order and calling for public discussion.

"Up to this point, we have done everything that is both within our power and within the law to help them," writes Cook. "But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create."

Cook shot back at Apple's critics, who include a diverse group of American politicians including Republican presidential front-runner Donald Trump and the White House, who asked Apple to cooperate for this one-time issue in the name of national security. "The government suggests this tool could only be used once, on one phone. But that's simply not true," writes Cook. "Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks—from restaurants and banks to stores and homes."

What Apple might be expected to do if it accedes to Washington's demands is to create a custom version of the iOS—with certain security features turned off—that will be downloaded onto Farook's iPhone, according to Andrew Crocker, a staff attorney for the digital civil rights advocacy group Electronic Frontier Foundation (EFF).

Specific security features like the phone wiping out its memory after the 10th failed passcode attempt or increasing delays after every incorrect passcode entry will be disabled in the custom iOS. With these features turned off, the FBI can attempt every possible passcode permutation very quickly using its supercomputer without any concerns of the smartphone deleting its data.

Cook called the court's invocation of the All Writs Act in cracking the iPhone as "chilling." Crocker believes Apple will challenge Pym's interpretation of the All Writs Act by saying writing the software is beyond reasonable and that it is "unreasonably burdensome."

Since Judge Pym's order was an ex parte application, meaning only one party—the FBI and the Department of Justice—was heard by the judge, Apple can file an objection. The appellate court will then rule following the objection, according to Crocker. Newsweek reached out to Apple asking what its next legal move will be but did not hear back.

"This is not even a slippery-slope situation," Crocker tells Newsweek. "This opens the door for the government to get other tech companies to write code for them. There are no limits set in place." The EFF released a statement on Wednesday announcing it will file an amicus brief to the court to support Apple's fight.

Crocker argues that the court order may violate the First Amendment of the Constitution as well. Computer code is a form of speech, as established in the 1995 case Bernstein vs. Department of Justice. And if Apple developers are forced to write this code, it may be infringing upon free speech protected under First Amendment.

But not all legal experts agree that the government is violating the Constitution thanks to the court order. Jim Dempsey, the executive director at the UC Berkeley Center for Law & Technology, says that Apple should cooperate with the FBI in this instance, which he believes has almost no legal precedence. "I'm not sure Apple can just say, 'We have the technical capability and the government has a warrant, but we'll not [crack the iPhone],'" Dempsey tells Newsweek.

But Dempsey emphasizes this does not mean he hopes for permanent backdoor access for the FBI and the Department of Justice. He hoped that Congress, which has been dithering with the idea of regulating tech companies on encryption for months, will stay out of the way and let the courts decide the future of encryption on a case-by-case basis.

"I would strongly oppose the legislative mandate that Apple designs all future phones to be accessible," Dempsey says. "I would rather have the courts decide this. It often happens that legislations happen without a full attention to the facts."

With the recent death of Justice Antonin Scalia last weekend, many news outlets speculated that this case may now go to the easily divided eight-person Supreme Court. While warning it's too early to forecast, Crocker believes the court order has presented the federal government with a new precedent to wield against other tech companies. "This issue won't be going away anytime soon," Crocker says.