Apple versus the FBI: What Could Have Been

By Sanjay Dureseti
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Sanjay Dureseti is a freshman at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

NOTE: Since this article was written, the FBI dropped its case against Apple on March 28 as the bureau was able to unlock the assailant’s iPhone on its own.

In the wake of brutal December 2015 terror attacks in San Bernardino, California, the usual political aftermath of mass shootings unfolded. The issue of gun control once again reared its divisive head. [1] Nativist, anti-Islamic sentiment, spurred by the rhetoric of various presidential candidates, further gripped the national consciousness. [2] But perhaps the most lasting and important consequence of the San Bernardino shootings, other than the loss of 14 lives, has been the developing legal conflict between Cupertino-based technology giant Apple and the Federal Bureau of Investigation (FBI.) Given the California assailants’ jihadist roots, carefully cultivated by years of secret adherence to extremist philosophies, the Bureau wanted access to a locked iPhone that belonged to one of the shooters. When requested to construct proprietary software that would allow “backdoor” access to the iPhone, Apple vehemently refused, citing its commitment to never weaken its security features. [3] In response, the FBI obtained a court order that required Apple’s cooperation, a directive that the tech company intends to fight.  

With both parties set to enter the legal battleground, this case could prove to be a massive landmark in the perpetually evolving dialogue surrounding state surveillance. After revelations of government data-mining brought to light by Edward Snowden, a majority of Americans have become concerned with the potential overreach of governmental institutions with access to increasingly sophisticated technology. [4]

A particularly unique aspect of the FBI-Apple dispute lies in the legal precedent employed by the government to justify Apple’s compliance. Federal attorneys have cited the centuries-old All Writs Act of 1789, which was signed into law by George Washington himself. This ancient piece of legislation is as broad as it is obscure, stating that “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.” [5]

Despite the antiquity of this statute, the federal government has often employed it to elicit information from private firms. In the case against Apple, the state is expected to rely on a 1977 decision by the Supreme Court, which, under the purview of the All Writs Act, allowed federal agents to force telecommunications companies to install technology that would record numbers called by specific phones.  In fact, this law had previously been used to force Apple to submit information to law enforcement over 70 times in the past few years, something the company was apparently more willing to do. [6]

​Where this case diverges, however, is in the extent of the FBI’s demands. In previous rulings, the company was only asked to provide data and was not being compelled to generate entirely new technology. In this vein, Apple’s defense will largely rest on the basis of due process and free speech, an argument that has a fairly developed legal foundation. Their main point is that, in creating this software, Apple will be engaging in an act of involuntary self-sabotage, rendered illegal by the principles of the Fifth Amendment. The tech company also invoked another Constitutional clause, arguing that computer code is a form of speech and that forced attempts to undermine it constitute a violation of Apple’s First Amendment rights. [7] Apple’s initial defense filing referenced a 1996 case surrounding Daniel Bernstein, who wanted to export his newly developed encryption software overseas. A Federal District court ruled that Bernstein’s proprietary code amounted to speech and was free to publish his creation.

All of this, however, could be rendered moot, as the FBI recently announced that it might have found a way to independently bypass the iPhone’s security. But, if the case moves forward, it could prove truly momentous in the progression of cyber-regulation. A legal victory by the Bureau could establish a tradition of government agencies requiring that companies hijack their own products. A win by Apple could ensure that corporations have legal leverage in mounting defenses against federal encroachment on citizen data.  Whatever the outcome, its effects will ripple throughout the corridors of American democracy.



[1] Noah Bierman and Evan Halper,“After shooting, Republicans want a 'wake-up call' on terrorism, Democrats on gun control,” Los Angeles Times, December 3, 2015, accessed March 23, 2016, http://www.latimes.com/nation/politics/la-na-san-bernardino-shooting-national-politics-20151203-story.html.
[2] Steve Holland and Emily Stephenson, “Donald Trump urges ban on Muslims entering U.S,” Reuters, December 7, 2015, accessed March 23, 2016 http://www.reuters.com/article/us-usa-election-trump idUSKBN0TQ2N320151207
[3] Tim Cook, “A Message to Our Customers,” Apple Inc., February 16, 2016, accessed March 23, 2016, http://www.apple.com/customer-letter.
[4] George Gao, “What Americans think about NSA surveillance, national security and privacy,” Pew Research Center: Factank, May 29, 2015, accessed March 23, 2016, http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy
[5] All Writs Act, U.S Code 28, § 1651, Cornell Law School: Legal Information Institute, https://www.law.cornell.edu/uscode/text/28/1651.
[6] Maura Dolan and Victoria Kim, “Apple-FBI fight over iPhone encryption pits privacy against national security,” Los Angeles Times, February 18, 2016, accessed March 23, 2016, http://www.latimes.com/business/la-me-fbi-apple-legal-20160219-story.html.
[7] Steve Lohr, “Analyzing Apple’s Argument That First Amendment Applies to Its Code,” New York Times, February 25, 2016, accessed March 23, 2016, http://www.nytimes.com/2016/02/26/technology/in-apple-case-addressing-the-legal-status-of-code.html.

Photo Credit: Flickr User SimonWhitaker

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