Last week, Apple revealed a court order by the FBI, which requires Apple to assist the agency in breaking into a locked phone belonging to one of the shooters in the San Bernardino attack. Specifically, Apple would be required to write a custom version of iOS to be installed on that specific phone, which would disable certain security features. As it currently stands, a certain number of incorrect password attempts will make the data on the phone irretrievable. The custom OS being sought by the FBI wouldn’t break the encryption on the phone, but it would give the FBI unlimited attempts to guess the password by brute force. If the password is strong enough, the FBI still won’t get in the phone, even with Apple’s help.
Apple has filed a motion to vacate the order. It argues that the law being used to justify the order is being misapplied. It also makes additional claims that Apple’s first and fifth amendment rights are being violated by the order. Several tech giants, including Google, Facebook, and Twitter, will be filing a joint amicus brief in support of Apple. Microsoft has stated its intention to file a brief as well, but declined to comment on whether it would be part of the joint brief, or if it would file separately. Organizations including the Electronic Frontier Foundation, the American Civil Liberties Union, and Amnesty International will also be filing briefs in support of Apple.
Since the issue was brought to public attention by Apple, numerous politicians have weighed in on the matter, on one side or the other. This could be very important, because even if Apple succeeds in the courts and has the order vacated, legislation could still be pushed through Congress requiring Apple and other companies to assist the FBI in the future.
Congress is already considering proposals on how to handle encryption. One would require backdoors in encrypted communications, while another would simply create a commission to study the issue. A third proposal would actually prevent state level bans of encryption, which some state legislatures are currently considering. These three proposals represent three main factions within congress concerning the encryption issue.
Senator Richard Burr, one of the masterminds behind the proposal that would mandate backdoors in encryption, is unsurprisingly critical of Apple. Burr wrote an editorial in USA Today, which states that Apple is breaking the law by disobeying a court order. Senator Feinstein, a fellow supporter of encryption backdoors has also criticized Apple, although less harshly than Burr, stating, “I still hope they will reconsider.”
Leading the pro-encryption side is Senator Ron Wyden, who shares Apple’s concerns that assisting the FBI in this case will weaken security on all iPhones. He stated, “Once you have those keys out there, understand that cyber-hackers and nonstate actors who threaten the United States—you’re going to have a problem with making sure they don’t get them.”
In the middle are Senator Mark Warner and Representative Michael McCaul. They believe their proposal to have a commission study the issue would bring about consensus on the issue. The commission would bring together law enforcement and experts in the tech industry. Warner even stated that this dispute between Apple and the FBI could have been avoided if the commission had been implemented in the past. “In many ways the current litigation that’s taking place might not have been needed if we’d had this kind of approach a few years back,” he stated.
With such a bitterly divided Congress, its possible there won’t even be a clear majority capable of pushing forward any proposal. In fact, Representative Adam Schiff believes that is just the case. “If it comes down to Congress actually having to do something, we probably can’t do it,” he told the Wall Street Journal. He cited the difficulty Congress has had in passing less controversial tech bills.
However, it appears that some members of Congress are interested in hearing more about the issue before making a decision. A hearing before the House Judiciary Committee is scheduled for March 1. At the hearing, Apple’s general counsel will be given the opportunity to argue the case for not helping the FBI break into the phone. Also speaking at the hearing is New York District Attorney Cyrus Vance, who in the past argued that phone encryption protects criminals by preventing the execution of warrants.
Presidential candidates have also weighed in on the dispute between Apple and the FBI. Every Republican candidate still in the race for the presidency has stated their opinion on the matter. Trump was quick to state that Apple absolutely should obey the order and help the FBI unlock the phone. The other candidates mentioned the importance of privacy and how it needs to be balanced against security, but ultimately all of them believe Apple should assist the FBI in this case. All of them argued that the possibility of finding information that could prevent future terrorist attacks outweighed any privacy concerns.
On the Democratic side, both Clinton and Sanders refused to state support for one side or the other. When asked if he supported Apple of the FBI, Sanders stated, “I’m on both; this is a very complicated issue.” Clinton stated she could see both sides of the issue, and mentioned the importance of finding common ground. Neither candidate came out and stated whether or not Apple should be forced to cooperate with the FBI’s request.
Do you think politicians will pass legislation undermining encryption? Leave your comment below.