A lot us probably know about Apple’s long drawn legal battle with the Federal Bureau Of Investigation (FBI). But just in case you have been living in Mars, here is a round up;
Apple refused request from the FBI to brick an iPhone (that was involved in a terrorist plot ) to help law enforcement get a hold of evidence allegedly held in the device. The terrorist plot was that of the Bernardino mass shooting, carried out by an American with ties to the Islamic state. Things got a little out of hand, forcing the FBI to adopt legal measures. A federal magistrate judge in California subsequently issued an order to compel the iPhone maker to provide technical assistance to the FBI in unlocking the iPhone of one of the San Bernardino mass shooters. As expected, Apple refused to obey the Court order and vowed to challenge the order, even up to the supreme Court.
Now the case is in Court, its no more just about ethics or user privacy, its now about what and who is legally right. It’s pretty much about what holds water before a panel of Judges. This the basic legal standing of both the FBI and Apple;
The All Writs Act
What is the All writs Act, how does it work, how can it be applied in the Apple vs FBI case and why is a 227-year-old law about to decide the fate of encryption in 2016?
Yes, 227 years, that’s how old the All Writs Act of 1789 really is. The law was sign by George Washington himself into law — which makes it quite a legal relic. Unfortunately, that’s one of the focal point of the Apple vs FBI standoff.
An excerpt from the 2 centuries old law that the FBI and the US government invoked against Apple read thus;
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
***A writ is basically just a formal order that’s issued by a court. Its a sweeping legal gesture that gives courts the authority to issue orders compelling people to do things, so long as it’s for a legal and necessary reason.***
One of the most notable modern use for the All Writs Act is helping law enforcement to “effectuate warrants”. The act has also been successfully invoked by the US government to compel telephone companies to install wiretaps, for phone companies to hand over call records, and to obtain CCTV footage, handwriting exemplars, and even DNA samples.
The All Writ Act is simply just too broad and vague to be successful opposed. The law is somewhat of a gap filler, a go-to judiciary act used by law enforcement in situations where there is yet no legislation in place to handle a legal scenario.
In an application filed by the DOJ to the federal court in the San Bernardino case, the Department of Justice (DOJ) specifically cited the All Writs Act as its primary legal justification as to why there is precedent to force Apple’s assistance.
There’s simply no reasonable limitations to the All Writs Act, meaning that the FBI is legally right — and in essence Apple is obstructing justice by refusing to comply with the Court’s order. The All Writs Act does not specify when and in which situation the law can be applied, thereby providing the FBI with a large enough legal loophole to nail the iphone maker. There’s no provision for limitations or references to any, in the Carnage wrecking but surprisingly short judicial Act which reads in full;
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
Its very clear that Apple doesn’t have any legal basis to fight the order when considering only the All Writs Act. However, Apple might have a strong weapon against the government — The Communications Assistance for Law Enforcement Act (CALEA) 1994. The 22-year-old CALEA offers Apple inc an effective weapon to force a limitation on the All Writ Act.
The court order Obtained against Apple by the FBI isn’t demanding that Apple unlock the phone. Which is an iPhone 5C running iOS 9 but rather it’s asking the iPhone maker to create a software to bypass iOS security measures — including “an auto-delete function that erases the key needed to decrypt data once a passcode is entered incorrectly after ten tries as well as a timed delay after each wrong password guess”.
Now the US government is clearly asking Apple to modify its iOS9 software, something which the CALEA clearly prohibits. CALEA limits the government’s authority to dictate to carriers or manufacturers any specific equipment design or software configuration. To put it simply, the law prohibits the government from asking Apple to modify or create a specific design or version of the iOS9 software.
Section 1002(b)(1) of the CALEA provides;
(1) Design of features and systems configurations. This subchapter does not authorize any law enforcement agency or office
(a) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;
(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
However, the government has dismissed this narrative, saying “CALEA is entirely
inapplicable to the present dispute [because] Apple is not acting as a telecommunications carrier, and the Court order issued, concerns access to stored data rather than real time interception and call-identifying information.
Nonetheless, If CALEA limits the government’s power “to require any specific design of equipment, facilities, services, features or system configurations” from any manufacturer, then by definition, CALEA limits by statute what a court can order by fiat or writ under the All Writs Act. Therefore, the Court Order the FBI procured from the court cannot necessarily circumvent CALEA by relying only on the All Writs Act.
Notwithstanding, the government’s argument that the CALEA is not applicable in this scenario might be right. In order to invoke the All Writs Act, Apple might argue that it is a communication equipment manufacturer as provided by Section 1002(b)(1) — A, of the CALEA. Apple might argue that it designs and manufactures the telecommunications equipment in the center of the whole controversy, namely the iPhone 5c in the government’s possession. If the Court accepts this narrative, then Apple might have successfully found a legal loophole to exploit as well.
But Apple’s narrative could be thrown out of Court before anyone can say ‘cheese’. Apple’s interpretation and application of the CALEA may in legal reality be fatally flawed.
The narrative rather comfortably ignores the fact that the “manufacturers” that are covered by CALEA are manufacturers of “telecommunications equipment” — according to Subsection (1002(b)(1)). Worst off, the “Telecommunications equipment” covered by the CALEA is defined in §153(52), and that definition is consistent with the usage in 1005(b) (“manufacturer of telecommunications transmission or switching equipment”). The equipment and manufacturers covered by CALEA is only that which is acquired by carriers for use within their network.
The ‘SUBJECT DEVICE’, an iphone 5c to which the FBI seeks access is not a “telecommunications equipment” as defined by the CALEA and it is not used by a “carrier” for transmission or switching. Rather it is “CPE” (§153(16)) and CALEA does not apply at all to edge devices owned by the user, or manufacturers of those
devices which Apple currently falls under.
On the Contrary, even if for some legal reasons, Apple’s narrative is considered, it may be (with a “may”) self implicative as the CALEA requires that all telecommunications providers in the US must install new hardware or software, as well as modify old equipment, so that it doesn’t interfere with the ability of a law enforcement agency to perform real-time* surveillance of any telephone or Internet traffic.
Apple might also argue that it is wrong for the FBI to ask it to decrypt the data on the iPhone 5c, citing 47 U.S. Code § 1002 Which reads;
A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.
The data in the subject device was encrypted by the the terrorist and owner of the iPhone 5c being the subscriber— and Apple does not necessarily posses the “encryption key” being the information necessary to decrypt the device being the iPhone — Apple can thus claim wrong doing by the FBI.
However, considering the defintions in 47 U.S. Code § 1001;
(8) The term “telecommunications carrier”—
(A) means a person or entity engaged in the transmission or switching of wire or
electronic communications as a common carrier for hire; and
(i) a person or entity engaged in providing commercial mobile service (as defined in section 332(d) of this title); or
(ii) a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this subchapter
The definition of a communication carrier is not consistent in Apple’s context and thus, it is not legally applicable. However, (8)B(ii) provides for “a person or entity engaged in providing wire or electronic communication switching or transmission service “.
Apple might argue that its Facetime and iMessage platform are “electronic communication transmission services” provided by Apple on all iPhones which can substantially replace telephone exchanges. However, the Court will have to be convinced that the platform “can substantially replace local telephone exchange services”.
In a Response to the FBI’s invocation of the All Writ Act, CEO Tim Cook wrote;
In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge. The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once 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 — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.
Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority. The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of ccombination with the speed of a modern computer.
The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock yyou iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge. Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.
We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications. While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect
Who is wrong and who is right? The final decision here actually doesn’t belong to the FBI or Apple. It belongs to the people—and it’s belongs to the Congress they elected and the laws they created. And I think it’s time the law acted through the law Courts. Watch this space as we update you on the court proceedings of the Apple vs FBI legal battle.