Industries & Practices

Privacy & Data Protection


    Why the Apple iPhone battle might matter beyond this one case

    Magistrate Judge Sheri Pym of the U.S. District Court for the Central District of California recently ordered tech giant Apple to help the FBI mine data from an iPhone used by one of the shooters in the December San Bernadino terrorist attacks. This post explains the order and provides some context for why it might have significant repercussions beyond just this one case.

    What the order requires of Apple 

    The order requires Apple to help the FBI unlock the shooter’s iPhone. Specifically, Judge Pym ordered Apple to “provid[e] reasonable technical assistance to law enforcement agents,” including providing the FBI with software capable of bypassing or disabling an iPhone security feature that wipes the data on the phone after 10 incorrect tries at entering a password.

    (For additional context, Apple’s iOS 9 operating system is designed with default device encryption. A user’s password generates a key that is used in combination with a hardware key on a chip inside the phone. Together, the two keys encrypt the device’s data so that it can only be accessed by the phone’s owner or someone who knows the password. If Apple disables the auto-wipe feature, law enforcement will be able to use “brute force” to access the phone’s data by attempting tens of millions of combinations without risking the deletion of the data.  According to Apple, the technology to disable the auto-wipe feature does not currently exist.)

    The law the FBI relied on to obtain the order 

    The order was made pursuant to the All Writs Act of 1789, which allows judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usage and principles of law.” In 1977, the Supreme Court held that this statute gave courts the authority to direct a phone company to help set up a pen register, a device that records all numbers called from a particular phone line. 

    Why the order might have repercussions beyond this case 

    Many, including Apple, believe that the use of the All Writs Act in this case presents a slippery slope. In an open letter published February 16, 2016, Apple CEO Tim Cooke made clear that Apple would oppose and challenge the order. Though the government has argued it would only use the tool on this one particular phone, Apple has warned that “[o]nce created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks.” 

    The Reform Government Surveillance coalition, a coalition of large tech companies that includes Microsoft, Facebook, Google and Yahoo, issued a statement supporting Apple’s decision.  While acknowledging the importance of assisting law enforcement in deterring terrorists and criminals, the coalition argued that tech companies should not be required to build backdoors to the technologies that keep their users’ information secure.

    This clash only highlights the ongoing debate across the United States and worldwide regarding the government’s ability to access data protected by the increasingly sophisticated security technologies developed by companies like Apple.   

    This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.

    Download PDF