In March, the Justice Department informed a California judge to drop the court order requiring Apple help the FBI unlock the iPhone that was used by one of the San Bernardino shooters, abruptly drawing to a close the six-week legal battle between the bureaucrats and the tech giant. However, the case is worth examining as it has far reaching implications for our increasingly tech-based society, particularly in looking at the balance between technology companies and law enforcement authorities regarding data and privacy.

Background

In February 2016, the US government applied for a court order under the All Writs Act 28 U.S.C. § 1651 seeking to compel Apple to create software to unlock one of the San Bernardino shooter’s iPhone. The installation of the software would allow the FBI to perform a passcode-cracking algorithm to unlock and retrieve the data stored on it. The shooter owned an iPhone 5C which was passcode-protected and ten incorrect attempts at entering the code would have resulted in automatic erasion of the phone’s data. The order specifically required Apple to provide ‘reasonable technical assistance’ in:

  • Bypassing or disabling the auto-erase function
  • Enabling the FBI to submit passcodes for testing
  • Ensuring that the FBI can send passcodes without incurring purposeful software delay
  • Providing software to protect the phone’s memory.

Apple refused to comply with the order and a hearing date was set for 22 March 2016. Its defence of the order was that being compelled to create software to breach its consumers’ phones amounted to a violation of the US’s First Amendment, which encapsulates Americans’ right to their freedom of speech. The order would be ‘unduly burdensome’ for Apple to comply with and hence the court order should be dismissed.

However on the day before, the government asked for a delay and dropped the order a week later, stating they had obtained help from a third party to unlock the phone.

Big Tech vs. Big Brother

The biggest problem is the question of whether law enforcement agencies or government authorities should be able to force technology companies in developing software that would amount to data breaches and privacy intrusions. The US government cited the case of United States v New York Telephone Co in which the US Supreme Court ruled that courts had the power to require the phone company to provide ‘reasonable technical assistance’ in accessing phone records, which Apple rejected.

However, while the case highlighted the need to draw a line on where government enforcement power ends regarding compelling a technology company to act, it has also highlighted the increasing influence of corporate power from tech giants in government and democratic decisions. Apple’s argument that software code is equivalent to free speech is also a criticised view as it sets the company up as individuals with individual rights. If this view is accepted, regulating our highly digitised society would be more difficult as almost everything digital is coded.

National Security vs. Individual Privacy

The other critical issue is the often competing interests of national security and personal privacy. It is significant that the FBI required Apple to create a general software tool which would circumvent the security passcodes in any given iPhone if needed. The ramifications of developing such software are clear in that it presents dangers of allowing innocent consumers of Apple being able to have their phone easily accessed by the government. However, the FBI wanted the software to hack into a terrorist’s phone and potentially for national security reasons. It raises the question, in what circumstances does the erosion of privacy become acceptable in the name of national security? Moreover, in a society that is becoming increasingly interconnected, where the Internet of Things is inevitable and the Internet of Law not far behind, is the FBI’s request for a ‘backdoor’ software that would only allow the ‘good guys’ access to personal data ultimately unrealistic?

Key Takeaways

Apple co-founder Steve Wozniak recently stated that it was wrong for the US government and FBI to order Apple to unlock the phone used by one of the San Bernardino shooters. While the case is over, the battles that Apple v FBI brought to the surface are still ongoing.
The case has reflected that data privacy in the 21st Century is still an area of law lacking guidance and direction. Governments need to implement laws that set out strict regulations on law enforcements’ ability to compel technology companies in aiding with investigations.

Anthony Lieu

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