Apple Brief Claims FBI iPhone Order Endangers Constitutional Rights

By Robert Lemos  |  Posted 2016-02-25 Print this article Print
Apple iPhone Brief

"If the [FBI] succeeds, Apple and other companies that are subject to these sorts of orders will begin to get hundreds or thousands of them a year," Alex Abdo, a staff attorney for the American Civil Liberties Union, said in a press call on Feb. 24. "Companies will have to create a compliance division … that division within these companies responsible for delivering malicious updates to their users is going to become the technological backdoor."

Apple has argued the issue since it initially publicized the court order on Feb. 16.

"Up to this point, we have done everything that is both within our power and within the law to help [the FBI]," CEO Tim Cook said in his Feb. 16 letter to customers. "But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone."

2. The FBI Never Historically Had These Powers

A central argument of Apple's Feb. 25 motion to vacate the court order is that, by using a 1789 law, the U.S. Department of Justice is attempting to unconstitutionally force companies to help them.

"This case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe," the company argued.

Resilient Systems' Schneier agreed that the sorts of surveillance powers—and the ability to recover information about people's activities—have not existed to date.

"Historically, all the conversations disappeared forever and there was no access," Schneier said. "The conversations you had would never be written down to be later read."

The data privacy problems are only going to get worse. In a recent paper published through Harvard University, Schneier and other security and legal experts warned that the burgeoning Internet of things will mean that every aspect of our lives will be recorded.

"The still images, video, and audio captured by these devices may enable real-time intercept and recording with after-the-fact access," the group wrote. "Thus, an inability to monitor an encrypted channel could be mitigated by the ability to monitor from afar a person through a different channel."

Metadata, which remains unencrypted, provides a great deal of information already—whom the suspect contacted through email, chat or phone calls and the rough location of the person during the day. "This information provides an enormous amount of surveillance data that was unavailable before these systems became widespread," the group stated.

3. Products With Backdoors Do Poorly in the Market

In the 1990s, when the U.S. government forced browser makers and other technology companies to limit the encryption strength in their products, U.S. technology companies were hurt. Firms in Europe and Israel quickly filled the vacuum with software that could use strong encryption.

Both Apple's legal brief and security experts have asked to what extent does the FBI have the legal power to order a company to research and develop exploits to their own products.

"Could the government compel a Google security engineer to spend Tuesdays at Ft. Meade [NSA headquarters] to break security features that they coded on Monday?" the ACLU's Abdo asked. "These are the legal questions that the government's position raises and that the government has yet to grapple with."

Even the FBI acknowledged the new world we are entering and the novelty of its investigative techniques.

The case "does highlight that we have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety," Comey said.


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