Lawyers representing the federal government withdrew their request for a court order compelling Apple, a popular consumer electronics company, to provide a method of unlocking an iPhone involved in a New York criminal investigation.
In April, the U.S. Department of Justice withdrew a request, filed with the U.S. District Court for the Eastern District of New York, that sought a court order compelling Apple to create and apply operating system software designed without encryption measures normally included with iPhones so investigators could gain access to a mobile phone involved in a criminal investigation.
According to government lawyers, Federal Bureau of Investigation (FBI) employees were able to obtain the phone’s passcode through questioning of the phone’s owner.
In February, U.S. government lawyers sought a similar court order from the U.S. District Court for the Central District of California. In that case, the federal government requested the court compel Apple to assist FBI with its investigation into the December 2015 San Bernardino terrorist attack, by devising a way to unlock the iPhone of one of the deceased terrorists.
Cooperation, Not Compulsion
Andrew McCarthy, a former assistant U.S. attorney for the Southern District of New York and a senior fellow with the National Review Institute, says technology companies should cooperate with law enforcement agencies to “unlock” their products, but the government should not use force to compel them.
In both cases, government lawyers sought rulings expanding the scope of the Judiciary Act of 1789, now called the All Writs Act, a law authorizing federal judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
“Whether it’s the courts or the federal government, the federal government should not be allowed to press private people to help the government unless it’s a national emergency,” McCarthy said. “The framers of the Constitution didn’t come at this thinking government was your friend, but a necessary evil. That said, I think Apple should be cooperating with the government in these counter-terrorism cases, but I also think it’s perfectly reasonable as a company that sells very strong privacy products to think that the government is overbearing.”
Paul Larkin, a senior legal research fellow with The Heritage Foundation, says encryption and privacy of electronic devices benefit millions of people every day, even if they don’t know it.
“It’s a difficult issue to deal with, because any American’s information that travels via the internet is encrypted,” Larkin said. “If it weren’t, people wouldn’t be able to buy over the internet, because other people would be stealing their credit card numbers and personal information. It’s unfair to look at this as evil, rapacious businesses versus an angelic government trying to stop crime.”
Unlocking the Box
Larkin says unlocking iPhones and other consumer products is like opening Pandora’s Box.
“It would be impossible to limit encryption access to just the FBI,” Larkin said. “You’ll be unable to limit it just to the FBI. Every state and local law enforcement agency will get it, and it will eventually leak out into the public, and it won’t be any good anymore, because it will make its way to organized crime. They’ll use it to hack into accounts and steal from companies and private individuals. I think it’s not, practically, an option to limit this to just one federal agency or agencies pursuing different types of crime.”
Kate Patrick ([email protected]) writes from Clarksville, Ohio.