Apple is not willing to weaken its hard-to-crack encryption protocols after being asked by a magistrate judge to build a weaker new version of its mobile operating system. This request comes from the FBI as an attempt to access the content of the iPhone used by one of the gunmen involved in the San Bernardino shooting. It has been argued that law enforcement officials wanted to use this high-profile act of terrorism as a way to create political pressure on Apple to comply with the FBI demands and set a dangerous precedent for future cases.
The context is as follows: the FBI requested Apple to make a new software product following specific FBI requirements whilst ensuring that criminal defendants would be able to exercise their constitutional rights to challenge the government’s legal claims as provided by the Federal Rules of Evidence (FRE). By requesting a new software product, the FBI was actually demanding the creation of intellectual property on the grounds of the Communications Assistance for Law Enforcement Act (CALEA) and the All Writs Act (AWA).
Luckily for Apple, CALEA only applies to telecommunications companies which mean that because Apple is considered an “information service”, CALEA rules did not apply.
AWA also does not allow the FBI to compel Apple to create new software, however, a broad interpretation of the AWA (a ‘stop-gap’ enacted in 1789!) may allow the government to administer its given legislative privileges. Accordingly, this stop-gap gives courts any relief that is not specially prohibited by existing law. So, if there is no law explicitly prohibiting Apple from being compelled to write code for the FBI, then the AWA gives courts the authority to force the company to do just that.
The main argument here is that the FBI has not underlying right to compel Apple to create new software products and this is why AWA may not necessary apply in this case.
Today we found out that Apple has won the appeal and the FBI has lost all venues for unlocking iPhones. It is hard to believe, however, that the computer scientists and hackers working within the National Security Agency (NSA) could not figure out how to crack a three-year-old iPhone, but it seem as if encryption really works.
This case has highlighted that governments seem to not know what they can or cannot ask tech companies to do to help with investigations. Again, clear guidelines are missing and in the main time Apple’s shares have gone up 20%.