Roosevelt Institute | Cornell University

The Battle for Encryption: Apple Inc. vs the FBI

By Henry GraneyPublished April 15, 2016

In our current uncertain times filled with terror attacks and government surveillance, is there any way to protect one's private information and live in privacy? The arguments crafted between the FBI and Apple surrounding access to a dead terrorist's phone are largely characteristic of a question that plagues our paranoid and digital world: In the future, will technology companies protect customer privacy or become government-sanctioned intelligence agencies?

    In 2013, Edward Snowden divulged government information detailing vast government surveillance programs. In doing so, Snowden sparked a public debate surrounding personal data security. Recently, however, this debate's focus has narrowed following recent terrorist attacks and most notably, those in San Bernadino, California.

    In the fallout of this attack, tech giant Apple Inc. is clashing with the Federal Bureau of Investigations (the FBI) over writing code to allow access to one of the deceased terrorist's smartphone. This battle has opened the eyes of the general public and divided opinions over the two options, personal security or possible terrorist prevention.

    The argument by the Federal Bureau of Investigations is one of personal safety and loss of life. The smartphone in question is an iPhone 5C used by Syed Rizwan Farook, one of the San Bernadino shooters who killed 14 people in December of 2015. This phone cannot be accessed and will erase information if incorrect passwords are entered a certain amount of times. The FBI believes that vital information regarding the attack and its organization may lie in the phone and have court ordered Apple Inc. to write code so that they may bypass the encrypted passcode. Invoking the All Writs Act, a law from 1789, which vaguely states that anything that is not specified must be complied to in the process of an investigation, the FBI demands that Apple give them access to the phone.

    Apple Inc., however, is hesitant to adhere to the FBI's demands. Citing the First Amendment, the tech titan battles the order to write code in order to bypass encryption. The company has stated that forcing them to write the code is unconstitutional, though this is not the only reason for their prudence. As articulated by the company's CEO, Tim Cook, granting access, or writing code to access, the private smartphone of an individual begins a dangerous precedent that allows governments, both domestic and foreign, to seize private information for their own purposes.

    Repeatedly, Apple has condemned the FBI for overlooking the implications should they follow the court order. This case could threaten all internet users. The precedent of accepted government intervention could allow access to financial information, private correspondence, and also allow foreign countries, such as Russia and China, to request information for various purposes.

    In New York, a possible predecessor to this case was struck down by a federal judge who denied access to a low-level drug dealer's phone. In his interpretation of the All Writs Act, there was simply no precedent or provision that would allow an invasion of privacy like accessing a private phone. Judge Orenstein, who decided the case was said to be, "…driven by a forward-looking concern for preventing future government abuse." This decision is currently being appealed by the Department of Justice (DOJ). As for the larger decision between the FBI and Apple Inc., if it were to go to the Supreme Court, Michael Sussman, a former DOJ prosecutor stated that the judges will look to the appellate courts for precedent to their understanding of the law.

    Despite the danger of allowing the FBI to strong arm consumer companies such as Apple, public opinion is divided on the issue. A 2014 Pew Research study showed that 90% of people surveyed believed that they had lost control of how personal information was collected and stored. While many are worried about where their data is, there is an almost even split between those who believe Apple should comply and those who believe it should not.

    The basis for the argument between Apple Inc. and the Federal Bureau of Investigation is one that echoes in American history. For centuries, the American people have had to grapple with the balance between security and privacy. Especially in our inter-connected and ever-digital society, that balance is very fragile and governmental involvement may tip the equilibrium in a certain way.