This story really starts back in September 2014, when Apple released iOS 8. As part of that software release, Apple changed the way it handled the encryption of data on the iPhone. Previous versions of iOS protected data with a user’s passcode (if they chose to use one), but Apple retained a way to unlock the iPhone.
With iOS 8 that changed.
Apple no longer retained a way to access a locked iPhone.
On 4 December 2015, husband and wife Syed Rizwan Farook and Tashfeen Malik took the lives of 14 people in a terrorist attack that they undertook in the name of ISIS. They were killed during the attack.
In the weeks following this horrible act of terrorism, the FBI took possession of an iPhone 5c provided to Farook by his employer, the County of San Bernardino in California.
The FBI believes this phone may contain information that links Farook and Malik with the terrorist organisation and provide valuable intelligence.
The early stages
During an early part of the investigation, however, the FBI directed an IT technician working for the County of San Bernardino to lock the iPhone. If it had not done this, Apple says it could have accessed the data within existing legal boundaries without the need for any further action.
The County of San Bernardino also had invested in a Mobile Device Management system a year before the attacks, but had failed to install it to Farook’s iPhone 5c. If it had, resetting the passcode on the iPhone would have been a trivial exercise and made the entire legal process on which the FBI embarked unnecessary.
To reiterate, if the FBI had not directed the IT employee to lock the iPhone or the County of San Bernardino had installed the software it had paid for, access to the iPhone 5c would have been a relatively simple process.
From the earliest part of the investigation, Apple provided support to the FBI, including provision of technical experts on the ground to support the Bureau.
Given what had and had not been done, however, the FBI has sought the support of the courts to compel Apple to create an entirely new piece of software – one that does not actually exist despite the crazy proclamations of presidential nominee Donald Trump and celebrity Piers Morgan.
Compelling Apple to ‘break’ iOS
The law the FBI is basing its case around is called the All Writs Act – a piece of law created in the very early day of the US’s history that was designed to give the courts power to effectively create laws ‘on the fly’ where no existing laws existed for a specific situation.
That makes sense as it was created during the infancy of the US’s legal system and there were many situations for which laws did not yet exist. At that time, almost every court case was a new situation that set a new precedent.
Apple’s counter argument is that if it is compelled to create something that does not yet exist to support this investigation, it sets a dangerous precedent not just for technology, but for any company that creates something.
According to a story on CNN Apple’s case can be summarised thus:
“Code is protected speech, so the Government can’t compel Apple to write a new version of iOS any more than it can force an author to write a story.”
There are previous cases (such as the publication of information pertaining to the use of strong encryption, which was illegal until the courts decided software code was protected under the First Amendment) that might support Apple’s case.
This is very important to understand and is the basis of most of the misunderstanding about this case.
The FBI does not want Apple’s help to break into Farook’s iPhone 5c by unlocking it.
The FBI wants Apple to write a new version of iOS that can be installed to the iPhone in order to access the data on the iPhone.
Apple’s position is this is too important an issue to leave to a court and the FBI to decide. And, with a bank balance that could solve the deficit of many large countries, Apple has both the money and access to legal resources that could see this case play out in the Supreme Court – a process that may take quite a bit longer than the FBI would like.
The recent death of conservative Chief Justice Antonin Scalia means a new Supreme Court Justice will be appointed and this adds further uncertainty to how the courts will ultimately view Apple’s counter arguments.
In any case, Apple will already be working on a new version of iOS that makes it impossible for future releases of iOS to have their security bypassed in the same way the FBI proposes.