Apple Faces Legal Dilemma With Refusal to Provide iPhone Backdoor

NEWS ANALYSIS: Apple's refusal to compromise iOS security to aid a terrorism investigation will likely lead to a fierce and likely precedent-setting legal battle.

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Apple CEO Tim Cook has launched a high-profile battle against the U.S. Government opposing an order to effectively bypass iOS security so that the FBI can get to the contents of an iPhone used by one of the shooters in the killing of 14 county workers Dec. 2, 2015 in San Bernardino, Calif.

Unfortunately, the claims and counter-claims surrounding the order are shaping up as an all-or-nothing battle in which the government seems to be asking for the keys to Apple's kingdom, while Apple is refusing to give an inch, a position that seems certain to result in a protracted legal battle.

In reality, this is an extraordinary situation in which there should be some middle ground that provides a way to allow the FBI to do its job and fight terrorism, while not giving out a key that would submit every smartphone to random plundering by curious bureaucrats. The FBI has a legitimate need for the data and Apple should work with the government to find a way to make this work.

The iPhone in question was used by Syed Farook, but was actually owned by San Bernardino County, Calif., for whom Farook worked. Farook and his wife Tashfeen Malik were killed in a shootout with police Dec. 2, 2015 after they conducted a terrorist attack on a county government office that killed 14 people and wounded 22 others.

U.S. Magistrate Judge Sheri Pym actually ordered Apple to provide reasonable technical assistance to the FBI in its efforts to get past the 10-try limit that Apple's iOS places on attempts to access devices running iOS 8 and above. Apple first put the limit in place following a series of high-profile breaches of celebrity accounts that resulted in private information being exposed.

While the order doesn't specify how Apple is to help the FBI, a letter from Cook says that a new version of iOS would need to be created that didn't contain a number of security features. "Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation," Cook wrote in his letter to customers. "In the wrong hands, this software—which does not exist today—would have the potential to unlock any iPhone in someone's physical possession."

The judge's order was accompanied by a memo from the FBI that suggested that the new software could be limited to one use on a single phone, but Cook isn't buying that. "The government suggests this tool could only be used once, on one phone," Cook wrote, "But that's simply not true. Once created, the technique could be used over and over again, on any number of devices."

Cook said that Apple can find no precedent for forcing an American company to expose its customers to a greater risk of attack. He said that all such a back door would accomplish would be to hurt law-abiding customers, since the bad guys would still use strong encryption.

It's notable that the government in this case is relying on the All Writs Act of 1789 as the authority to impose the order on Apple. In the past, this act has been used to force the release of information under court order.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...