If FBI Director James Comey did himself and his agency a great public good by striking a conciliatory tone about the FBI’s dispute with Apple under oath at the recent congressional hearings, recent filings and public comments by the Department of Justice — in particular, it’s latest brief with the court, which ratcheted up the accusatory rhetoric, going as far as to question Apple’s patriotism — has not only undone that goodwill, it may have set any resolution back catastrophically. In a cover story for Time magazine, Apple CEO Tim Cook echoed his SVP and General Counsel Bruce Sewell, saying he was “deeply offended” by the recent filing.
Cook spent some time clarifying the commonly-misreported contention that Apple had acquiesced to previous requests like this one before, or that it had done so for China. Both are false: “we’ve never been asked to do what [the FBI asked us] to do now,” Cook said, and on previous occasions had mentioned that no other country had asked for Apple to weaken its security before, either.
He painted the case as a simple legal question, albeit on a difficult subject: does the government have the power, using the All Writs Act, to compel third-parties to weaken their products’ security — and by writing pro-government code, control their “speech” (previous cases have held that computer code is a form of speech — making it directly unconstitutional to compel or mandate speech).
Cook also defended Apple’s stance on the issue (which is that the government does not have this authority, as the Brooklyn case judge ruled), but brought up a previous piece of legislation to support his stand — CALEA, the “regulatory arm for the telecommunications area,” which was written to cover exactly this sort of “clash” of government and private interests. Apple’s lawyers have argued that the original ex parte order from Judge Sheri Pym that kicked off the controversy was invalid under CALEA, along with numerous constitutional reasons.
In the Brooklyn case where the Department of Justice (not the FBI) was seeking to compel Apple’s assistance using the All Writs Act, the defendent in the case — a meth dealer — pleaded guilty, but could not be persuaded to unlock his iPhone, citing Fifth Amendment protections against self-incrimination. “But the broader issue of, can the government use the All Writs Act to compel Apple to extract data from a phone, was still very important,” Cook said.
Cook also took pains to explain the often-underreported fact that Apple reacted quickly when asked for help, devoted some resources to providing as much information and technical assistance as it could (including unsolicited advice about approaches the agency could take to legally obtain what it wanted), but the case was complicated in part when the FBI — acting without consulting with Apple — attempted to change the iCloud password on the seized gunman’s iPhone 5c, but ended up breaking the possibility of forcing an iCloud backup of the device’s current contents.
While it is unlikely that there is anything of value on the work-issued iPhone, which was deliberately left intact by San Bernardino massacre gunman Syed Farook and his wife, Pashfeen Malik — the FBI is using the case to try and set legal precedent, hoping to get around various constitutional issues that would otherwise make the agency’s position untenable. Responding to the DOJ’s argument for widespread use of the All Writs Act to essentially force the entire industry to effectively neuter encryption entirely, Apple referred to the way the DOJ looks at the AWA as a sort of “magic wand” that removes all legal concerns.
Cook noted that the FBI did not get in touch with Apple immediately, but when it did the company responded fully, providing the FBI with all the information on the seized iPhone that they had — the last iCloud backup Farook had done, which was about six weeks before the workplace attack, and “meta information” that Apple would normally have, such as when and to whom iMessages and emails were sent (but not any of the contents of those things, since that is encrypted).
“I suspect — I don’t know, but I suspect — that they also gave the carrier a warrant, because they obviously have the ability to get the phone metadata and the metadata of messages that go across the cellular network,” he said. “So there’s several different pieces of information they can gather on the phone.”
Short of actual logs of messages or recordings of phone calls, the FBI likely has every scrap of useful information that can be retrieved from the device already — making it increasingly obvious that the agency is more interested in the precedent and impact of that than this particular iPhone.
The rest of the Time article goes into much more depth about Apple’s position and what the consequences are, and is highly recommended reading. While admitted that “at the end of the day, we’ll follow the law,” if it loses this fight, Cook’s suggestion for a commission to study the issue and develop legislative proposals was not a case of wanting to “kick the can” down the road; he said he felt that the issues and implications were important enough that it needed a full and serious study in the open, rather than “reactionary” impulses.
The court that initially ordered Apple to comply with the FBI’s demands is holding a hearing for oral arguments on whether to rescind the order or not on March 22.
