|
 Law enforcement agencies have for years faced off against tech firms
and privacy advocates over their ability to monitor digital
communications, and the government to date has largely lost the
battle.
But the specific circumstances of the San Bernardino case, a young
married couple who sympathized with Islamic State militants and
killed 14 people and wounded 22 others in a shooting rampage at a
holiday party, could give government officials the legal precedent
they need to reverse the tide.
A federal judge in Los Angeles on Tuesday ordered Apple to provide
"reasonable technical assistance" to investigators seeking to read
the data on an iPhone 5C that had been used by Rizwan Farook, who
along with his wife, Tashfeen Malik, carried out the shootings.
The government argues that the iPhone is a crucial piece of
evidence. But civil liberties groups warn that forcing companies to
crack their own encryption endangers the technical integrity of the
Internet and threatens not just the privacy of customers but
potentially that of citizens of any country.
On Wednesday, Republican lawmakers and presidential candidates came
out strongly on the side of law enforcement, raising the possibility
of another legislative effort to require tech companies to put
“backdoors” in their products.
White House spokesman Josh Earnest said the Department of Justice
was asking Apple for access to just one device, a central part of
the government's argument, which Apple Chief Executive Officer Tim
Cook has said was "simply not true."
"They are not asking Apple to redesign its product or to create a
new backdoor to one of their products," Earnest told reporters at a
daily briefing.
The Department of Justice stressed in a statement on Wednesday that
its request was "narrowly tailored," and chided Apple. "It is
unfortunate that Apple continues to refuse to assist the department
in obtaining access to the phone of one of the terrorists involved
in a major terror attack on U.S. soil."
Most technology security experts, including many who have served in
government, have said technical efforts to provide government access
to encrypted devices inevitably degrades security for everyone. It
is an argument that has been made since the 1990s, when the
government tried and failed to force tech companies to incorporate a
special chip into their products for surveillance purposes.
“The government suggests this tool could only be used once, on one
phone," Cook said in a statement on Tuesday. "But that’s simply not
true. Once created, the technique could be used over and over again,
on any number of devices."
Google Chief Executive Sundar Pichai endorsed Cook's stance in
tweets on Wednesday.
"We build secure products to keep your information safe and we give
law enforcement access to data based on valid legal orders," he
wrote. "But that’s wholly different than requiring companies to
enable hacking of customer devices & data. Could be a troubling
precedent."
LEGAL FIGHT
Representatives of several tech companies did not respond to
requests for comment on the ruling. Not surprisingly, however, trade
groups that count thousands of software companies, smartphone makers
and network security firms as members decried the government's
position, while law enforcement groups backed the Justice
Department.
The industry was "committed to working with law enforcement to keep
Americans safe," the Software & Information Industry Association
said, but in the Apple case, "the government’s position is overbroad
and unwise."
The Computing Technology Industry Association said if the order was
carried out, "it could give the FBI the power to call for some sort
of back end to encryption whenever they see fit."
If the federal judge, Magistrate Sheri Pym, rejects Apple's
arguments, the Cupertino, California-based company can appeal her
order to the district court, and then up the chain to the 9th U.S.
Circuit Court of Appeals in San Francisco and ultimately the U.S.
Supreme Court.
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The 9th Circuit is known to be pro-privacy. "The government
ultimately will have an uphill fight,” said Robert Cattanach, a
former Justice Department lawyer who advises companies on cyber
security issues.
Farook was assigned the phone by the county health department for
which he worked, prosecutors said in a court filing on Tuesday. The
health department had "given its consent" to authorities to search
the device and to Apple to assist investigators in that search, the
document said.
San Bernardino County's top prosecutor, District Attorney Mike
Ramos, said Apple's refusal to unlock the phone was a slap in the
face to the victims of the shooting and their families.
"They’d like to know details like any of us in America would like to
know. Were there other threats? Were there other individuals
involved?" Ramos said in a telephone interview.
'MASTER KEY'
Dan Guido, an expert in hacking operating systems, said that to
unlock the phone, the Federal Bureau of Investigation would need to
install an update to Apple's iOS operating system so investigators
could circumvent the security protections, including one that wipes
data if an incorrect password is entered too many times.
He said only Apple could provide that software because the phones
will only install updates that are digitally signed with a secret
cryptographic key.
"That key is one of the most valuable pieces of data the entire
company owns," he said. "Someone with that key can change all the
data on all the iPhones.”
The notion of providing that key is anathema to the Electronic
Frontier Foundation, an online rights group. "Once this master key
is created, governments around the world will surely demand that
Apple undermine the security of their citizens as well," the
foundation said in a statement.
Lance James, an expert in forensics who is chief scientist with
cyber intelligence company Flashpoint, said Apple could respond to
the order without providing crypto keys or specialized tools that
could be used to unlock other phones.
Apple technicians could create software that would unlock the phone,
allowing the company to create a backup file with all of its
contents that they could provide to law enforcement, James said.
American Civil Liberties Union staff attorney Alex Abdo said the
government's request risked a "dangerous" precedent. “The
Constitution does not permit the government to force companies to
hack into their customers' devices," he said.
Apple was a topic of discussion on the presidential campaign trail
on Wednesday.
Donald Trump, front-runner for the Republican Party's nomination to
run in the Nov. 8 election, said on Fox News Channel’s Fox &
Friends, "I agree 100 percent with the courts. In that case, we
should open it (the iPhone) up ... We have to use common sense."
Another Republican candidate, U.S. Senator Marco Rubio of Florida,
called it a “tough issue” that would require government to work
closely with the tech industry to find a solution. Rubio said he
hoped Apple would voluntarily comply with the court order.
(Additional reporting by Megan Cassella, Doina Chiacu and Susan
Heavey in Washington, Steve Holland, Julia Love and Dan Levine in
San Francisco, Sharon Bernstein in Los Angeles; Writing by Grant
McCool; Editing by Jonathan Oatis, Jonathan Weber, Toni Reinhold)
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