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Why won’t Apple unlock the iPhone used by a terrorist? (Fusion)

Use our basic resources to introduce issues about privacy and personal territory. Do students consider data on their smartphones their “personal territory”?

Scroll down for a quick list of key resources in our Teachers’ Toolkit.

Discussion Ideas

• How did this all start?
  • According to the genuinely great explainer from Fusion, “The FBI has an work-issued iPhone left behind by San Bernardino shooter Syed Farook, who, along with his wife, killed 14 people and injured others at his workplace in December. The FBI wants to unlock the phone so they can see if there’s anything helpful for their investigation. But there’s a problem: the phone’s data is encrypted; it can only be unlocked with Farook’s passcode, and Farook is dead.”

 

• The phone in question was issued by Farook’s employer; he destroyed two personal phones (which presumably held more pertinent information) before the attack. So why does the FBI want to investigate this iPhone?
  • The government wants to see if Farook communicated with any of his victims before the assault. Beyond that, the FBI is not sure what might be on the phone.
  • According to FBI Director James Comey, “Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t.”

 

• Why is unlocking the iPhone so difficult?
  • Apple, invested in becoming “the privacy company” over the past several years, has built robust security into the iPhone:
    • 1. It only lets you try 10 incorrect passcodes before it erases the data on the phone (In other words—yes, it has a self-destruct code.)
    • 2. It makes you wait an increasingly long time between incorrect attempts.
  • At this point, Apple will have to write a special software code (a hack that Apple is calling a “GovtOS” and others are calling an FBiOS, heh) that will disable those privacy features. The company says it will take 10 employees up to 4 months to hack the iPhone.

 

• Why isn’t the FBI hacking the iPhone themselves?
  • “The iPhone is designed to run only iOS software created by Apple. For the phone to recognize that the software was made by Apple, the company must sign each piece with an encrypted key to verify it. Even if the F.B.I. tried to build a new version of iOS, it would not have Apple’s crucial signature.” Having said that:
    • “There’s nothing preventing the FBI from writing that hacked software itself, aside from budget and manpower issues. There’s every reason to believe, in fact, that such hacked software has been written by intelligence organizations around the world.”
    • “Either the government’s capabilities are severely limited beyond what we thought, or this is a government test case to see how the courts and how Apple will respond.”

 

• Why is Apple refusing to cooperate with the FBI?
  • Most experts say this isn’t an isolated case; it’s a smartly decided test of the limits and even the definition of privacy and security.
    • Last year, “In a secret meeting convened by the White House around Thanksgiving, senior national security officials ordered agencies across the U.S. government to find ways to counter encryption software and gain access to the most heavily protected user data on the most secure consumer devices, including Apple Inc.’s iPhone.”
    • “Once created, the [FBiOS] technique could be used over and over again, on any number of devices,” wrote Apple CEO Tim Cook in a public letter opposing the judicial order.
      • The Manhattan district attorney, for example, wants to access 175 iPhones that are currently encrypted.

 

• Why is this a big deal?
  • “Because we live in a world in which we leave behind digital trails constantly. Ever since the Snowden revelations, we’ve been having an ongoing debate about just how much information the government should have access to. Apple is drawing a line in the sand here.”

 

• So, is this a constitutional right-to-privacy case?
  • Apple thinks so. “Apple says the court order violates American free speech law under the first amendment and due process protections under the fifth amendment.”

 

• What other laws are being debated here?
  • All Writs Act of 1789. (Yes, 1789.) The AWA “gives federal judges the power to issue orders to compel people to do things within the limits of the law . . . The government has cited the All Writs Act in the past, from a 1977 ruling forcing phone companies to help set up devices that record all numbers called from a specific phone line to the Wireless Communications and Public Safety Act of 1999 which required all cellphone providers to be able to geolocate their customers’ phones. The writ does have its limits: a federal judge ruled in 2005 that the All Writs Act could not be used to force a phone company to allow real-time tracking of a phone without a warrant.”
  • The Communications Assistance for Law Enforcement Act (CALEA). “CALEA says that if a tech company does not keep encryption keys to its products, it’s not required to provide them to law enforcement.”
  • Bernstein v. US Department of Justice. In these cases, the courts ruled that software is protected speech under the First Amendment.
  • Riley v. California. In this 2014 case, the Supreme Court unanimously decided that the warrantless search and seizure of digital contents of a cellphone during an arrest is unconstitutional.

 

• Why are other countries interested in this case?
  • “Because companies generally have to comply with what governments ask them to do, and if they do it for one government, they can’t usually refuse to do it for another government”—and “the terms of the FBI’s demands will look downright generous compared to what Russia and China would probably ask Apple to do if it capitulates.”

 

• Who is supporting Apple?
  • Silicon Valley. Tech giants, including Google, Microsoft, Facebook, and Twitter, are part of a coalition that supports Apple.
  • Civil liberties advocates. Amnesty International and the American Civil Liberties Union support Apple, while NSA whistleblower Edward Snowden calls FBI v. Apple “the most important tech case in a decade.”
  • Apple shareholders. At Apple’s annual shareholder meeting, the Rev. Jesse Jackson, an Apple stock owner for 15 years, said, “Where we stand in controversy is a measure of our character.”

 

• Who is supporting the FBI?
  • The government and law enforcement. Obviously.
  • Some families of the San Bernardino victims. “The victims ‘have questions that go simply beyond the criminal investigation … in terms of why this happened, how this happened, why they were targeted, is there anything about them on the iPhone—things that are more of a personal victim’ view”, according to their attorney.
  • Those who think the war on terror requires this kind of heightened security. Microsoft founder and philanthropist Bill Gates, for example, thinks that “with the right safeguards, there are cases where the government on our behalf—like stopping terrorism, which could get worse in the future—that [FBiOS-like compliance] is valuable.”

 

• What’s next?
  • “By March 3, anyone outside the case can submit their remarks, which will be considered by the judge. On March 10, the government plans to respond to Apple and by March 15, Apple can submit its final reply to government’s response. On March 22 a District Court will listen to both sides and take a call on the decision accordingly.”

 

TEACHERS’ TOOLKIT

Fusion: Apple’s battle with the FBI: All your questions answered

Nat Geo: What is personal territory? How can it be defended?

Guardian: Apple v the FBI: what’s the beef, how did we get here and what’s at stake?

New York Times: Explaining Apple’s Fight with the FBI

Tech2: Apple vs FBI: The story so far

Engadget: What you need to know about Apple’s fight with the FBI

Wired: Apple’s FBI Battle is Complicated. Here’s What’s Really Going On

Vox: Why Apple and the FBI are fighting over access to the San Bernardino shooter’s phone