Law professor breaks down the raging battle between Apple and the FBI

Law professor breaks down the raging battle between Apple and the FBI
William Barr image by U.S. Department of Justice
Human Rights

For years, tension has existed between the Federal Bureau of Investigation (FBI) and tech giant Apple, which — citing privacy concerns — has refused to share the passwords of various suspects who had used its devices. Brian Owsley, an assistant law professor at the University of Texas at Dallas, takes an in-depth look at Apple’s disagreements with the FBI in a February 26 article for Just Security.

The most recent example, Owsley explains, is the case of Lt. Mohammed Saeed Alshamrani, an aviation student from the Saudi Royal Air Force who shot and killed three officers at a U.S. naval base in Pensacola, Florida on December 6, 2019. Alshamrani owned two iPhones, and the FBI has asked for Apple’s help in decrypting them.

“After it recovered the iPhones,” Owsley notes, “the FBI obtained a court order authorizing it to search them. With no way of obtaining the passwords to the phones, Dana Boente, the FBI’s general counsel, sent Apple a letter requesting assistance on January 8.”

A few days later, Attorney General William Barr criticized Apple for not providing “substantive assistance” in the investigation — and the tech giant responded, “We reject the characterization that Apple has not provided substantive assistance in the Pensacola investigation. Our responses to their many requests since the attack have been timely, thorough and are ongoing.”

But the Pensacola investigation, Owsley points out, was not the first time Apple butted heads with the FBI. Back in early 2016 — when Barack Obama was serving his second term as president and Loretta Lynch was serving as U.S. attorney general — Apple and the FBI had a disagreement over the Syed Rizwan Farook/Tashfeen Malik investigation.

In December 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, carried out a mass shooting in San Bernardino, California. Although Farook died in the attack (which left 14 people dead), the FBI wanted to see the data on his iPhone as part of their investigation.

Owsley recalls, “In February 2016, the FBI sought Apple’s assistance to access the data stored on Farook’s iPhone. When Apple refused to cooperate in a manner that satisfied the FBI, it obtained a federal court order pursuant to the All Writs Act, requiring Apple to assist the FBI in unlocking Farook’s cell phone.”

Apple explained its position to the FBI. “Pursuant to this court order,” Owsley writes, “the FBI wanted Apple to create a backdoor into its iOS mobile operating system. Apple balked at this suggestion, asserting that it would render the security of each and every iPhone user vulnerable to attack based on this approach. Specifically, Apple maintained that ‘backdoors can also be exploited by those who threaten our national security and the data security of our customers.’”

However, the FBI did not pursue enforcement of its court order and was able to access Farook’s iPhone without Apple’s help.

Four years later in the Alshamrani case, Apple’s battle with the FBI continues.

“Apple’s position is influenced in part by marketing itself to consumers as the protector of their privacy, which in turn, helps them sell their technology,” Owsley writes. “Nonetheless, Apple explicitly claims that creating the access that the FBI seeks would weaken its operating system for everyone.… Apple has a strong argument that essentially breaking its operating system at the FBI’s request is breaking it for every iPhone user and thus, unreasonably burdensome.”

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