A court order demanding that Apple Inc. help the U.S. government break into the iPhone of one of the San Bernardino shooters opens a new chapter in the legal, political and technological fight pitting law enforcement against civil liberties advocates and major tech companies.
The government argues that the phone is a crucial piece of evidence in investigating one of the worst attacks in the United States by people who sympathized with Islamist militants. But privacy groups warn that forcing companies to crack their own encryption threatened not just the privacy of customers, but potentially citizens of any country.
A federal judge in Los Angeles on Tuesday ordered Apple to provide “reasonable technical assistance” to investigators seeking to unlock the data on an iPhone 5C that had been owned by Rizwan Farook, who along with his wife, Tashfeen Malik, killed 14 people and wounded 22 others on Dec. 2 in San Bernardino, California.
Both were killed in a shootout with police. The Federal Bureau of Investigation has been investigating the couple’s potential communications with Islamic State and other militant groups and argued that it needs access to the iPhone to find out more.
If the federal judge, Magistrate Sheri Pym, rejects Apple’s arguments, the company can appeal her order to the district court, and then up the chain to the 9th U.S. Circuit Court of Appeals in San Francisco and ultimately the U.S. Supreme Court.
The 9th Circuit is known to be pro-privacy. “The government ultimately will have an uphill fight,” said Robert Cattanach, a former Justice Department lawyer who advises companies on cyber security issues.
Apple Chief Executive Tim Cook said the order threatened the security of its customers and had “implications far beyond the legal case at hand.”
The ruling was a topic of discussion on the presidential campaign trail on Wednesday.
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Donald Trump, the front-runner for the Republican Party’s nomination to run in the Nov. 8 election said on Fox News Channel’s “Fox & Friends” program that resistance to encryption stems from “ridiculous hysteria ... about privacy and the government.”
Another Republican candidate, U.S. Senator Marco Rubio of Florida, called it a “tough issue” that would require government to work closely with the tech industry to find a solution. Rubio said he hoped Apple would voluntarily comply with the court order.
Dan Guido, an expert in hacking operating systems, said that to unlock the phone, the FBI would need to install an update to its iOS operating system so that investigators could circumvent the security protections, including one that wipes data if an incorrect password is entered too many times.
He said that only Apple can provide that software because the phones will only install updates that are digitally signed with a secret cryptographic key.
“That key is one of the most valuable pieces of data the entire company owns,” he said. “Someone with that key can change all the data on all the iPhones.”
The notion of opening that key is anathema to the Electronic Frontier Foundation online rights group. “Once this master key is created, governments around the world will surely demand that Apple undermine the security of their citizens as well,” the foundation said in a statement.
American Civil Liberties Union staff attorney Alex Abdo said the government’s request risked a “dangerous” precedent. “The Constitution does not permit the government to force companies to hack into their customers’ devices,” he said.
Some security experts are concerned that the technique might be used again by the U.S. government, other countries or sophisticated cyber criminals.
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“The problem is that the technique that Apple introduces could be used again by the FBI. And if it gets out, by China or Russia or others,” said David Kennedy, a forensics expert who is chief executive of cyber firm TrustedSEC LLC. “It introduces exposures that haven’t been there in the past. It’s a backdoor.”
Lance James, an expert in forensics who is chief scientist with cyber intelligence firm Flashpoint, said Apple could respond to the order without providing crypto keys or specialized tools that could be used to unlock other phones.
Apple technicians could create software that would unlock the phone, allowing the company to create a backup file with all of its contents that they could provide to law enforcement, James said.
“This isn’t about the war over encryption. It’s about a search warrant” James said. “The FBI could just send it to Apple and would get it done.”
Asked about the issue in an interview with CNBC TV, the CEO of mobile carrier T-Mobile, John Legere, said he understood both sides of the issue.
Legere called the request “unheralded” and “groundbreaking” but said, “I really don’t know how to balance” customer privacy and national security issues.