from Net Politics and Digital and Cyberspace Policy Program

Reactions to the Apple-FBI Clash in the San Bernardino Case

Apple CFR Cyber Net Politics Back Doors Encryption
Apple CFR Cyber Net Politics Back Doors Encryption

February 18, 2016
7:00 am (EST)

Apple CFR Cyber Net Politics Back Doors Encryption
Apple CFR Cyber Net Politics Back Doors Encryption
Blog Post
Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

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Terrorism and Counterterrorism



Much has been written in the past forty-eight hours on Apple’s refusal to comply with a federal order to assist the FBI access the encrypted contents on a iPhone 5C owned by Syed Rizwan Farook, one of the deceased perpetrators of the San Bernardino terrorist attack.

Here’s a quick recap of the events to bring you up to speed:

On February 16, a federal magistrate in California ordered Apple to assist the FBI unlock and decrypt Farook’s phone. In siding with the U.S. government, the magistrate accepted the Department of Justice’s interpretation of the All Writs Act, a 200-year old law that allows courts to compel a person to do anything to comply with an order. Specifically, the FBI is looking for Apple to develop a software that will:

  • Disable an iPhone’s ability to automatically wipe its contents if an incorrect password is provided ten times;
  • Allow the FBI to run software that will attempt to guess the iPhone’s password--a technique known as brute force; and
  • Disable software features that would introduce delays after every password attempt.

On February 17, Apple published an open letter vowing to oppose the order on two grounds:

  1. Complying with the order effectively requires Apple to build malware to defeat the security features of its own products, exposing the security and privacy of its users if a third party got its hands on the malware.
  2. Complying with the order would set a bad precedent by using similar orders to "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."

Here are some of the reactions in the...

Technical community:

  • Dan Guido over at Trail of Bits argues that it is technically feasible for Apple to comply with the order.
  • Chris Williams over at the Register also argues that Apple could probably comply with the order, but that it’s choosing not to for public relations reasons.
  • Matt Blaze, a cryptographer at the University of Pennsylvania, is skeptical of commentators who argue that it’s easy to develop a new operating system that the FBI requires.
  • The Electronic Frontier Foundation, the Center of Democracy and Technology, and the Open Technology Institute all support Apple’s opposition.
  • Askhan Soltani points out that the FBI already has backups to Farook’s phone as of October 19. The assumption here is that FBI is looking for more data that would have been saved to the phone between that date and the shooting on December 2.
  • Nicholas Weaver thinks the magistrate’s order is worse than a slippery slope, it’s a cliff.
  • Bruce Schneier explains why the public should side with Apple.
  • The Internet Society, a non-profit and institutional home of the standards body that sets the Internet’s technical protocols, expressed support for Apple.

Tech companies:

  • Google CEO Sundar Pichai said in a series of tweets that the order could set "a troubling precedent."
  • WhatsApp CEO Jan Koum shared Cook’s letter on Facebook and gave the company his full support, noting that "our freedom and our liberty are at stake."
  • The Information Technology Council, an industry group that represents Dell, Facebook, Google, and others, expressed "worry" at the broader implications of "requiring governments to disable security features."
  • Reform Government Surveillance, an industry group comprised of AOL, Apple, Google, Facebook, Evernote, Yahoo, LinkedIn, Microsoft, Twitter and Dropbox, issued a statement saying that "companies should not be required to build in backdoors to the technologies that keep their users’ information secure."
  • Mozilla’s Mark Surman said that asking Apple to override its own security protections is "massive overreach."

Think tank community:

  • Max Boot disagrees with Apple’s position, calling it "sanctimonious and misleading."
  • Robert Chesney at Lawfare notes that the encryption and "going dark" battle is now moving from Congress to the courts.
  • Susan Hennessey and Ben Wittes at Lawfare are saying: "We told you so."
  • Matt Mayer at the American Enterprise Institute argues that absent Congressional action on encryption, Apple is right to fight the magistrate’s order.
  • Julian Sanchez at CATO argues that the Apple-FBI case is all about the precedent it sets.
  • Andrew Woods wouldn’t be surprised if Apple appealed the order on First Amendment grounds given that code is speech.

Political establishment:

  • Congressman Ted Lieu (Democrat, California) issued a press release supporting Apple, arguing that the court is effectively asking a private sector company to be an arm of law enforcement.
  • Congressman Justin Amash (Republican, Michigan) tweeted his support for Apple.
  • Senator Tom Cotton (Republican, Arkansas) said that Apple "chose to protect a dead ISIS terrorist’s privacy over the security of the American people."
  • Senator Ron Wyden (Democrat, Oregon), who has clashed with the government on encryption, said that the FBI’s move could "snowball around the world" and give "Russia and China a blueprint for forcing American companies to create a backdoor."
  • Senator Ron Johnson (Republican, Wisconsin) expressed concern that "using the judiciary to require Apple to build a ’master key’ ... could open a Pandora’s box with unforeseen effects."
  • Richard Burr (Republican, North Carolina) and Dianne Feinstein (Democrat, California), the chair and ranking members of the Senate Intelligence Community, sided with the FBI. In a separate op-ed, Burr said Apple has “wrongly chosen to prioritize its business model above compliance with a lawfully issued court order.”

2016 campaign:

  • Donald Trump thinks it’s ridiculous that Apple won’t comply and has called for an Apple boycott.
  • John Kasich said that the magistrate’s order wasn’t a case of government overreach despite acknowledging a month ago at a Council on Foreign Relations event that backdoors in encryption could potentially make people more vulnerable to cybercriminals.
  • Marco Rubio didn’t take any sides, saying the issue was "tough."
  • Ted Cruz said that although Apple shouldn’t be required to put backdoors in all of its phones, terrorism trumps privacy concerns in the San Bernadino case.
  • Hillary Clinton called it a "hard dilemma" but noted that "got to be some way on a very specific basis we could try to help get information around crimes and terrorism."
  • Bernie Sanders said that there has to be a balance and that the United States can fight terrorism without undermining constitutional rights.

Newspaper editorials:

  • The Wall Street Journal criticizes the White House’s management of the "going dark" issue and supports the encryption commission proposed by Rep. Michael McCaul (Republican, Texas).
  • The Washington Post argues that Apple shouldn’t be forced to decrypt user data.
  • The New York Times says that Apple is right to challenge the magistrate’s order.

We’ll keep this post updated with any additional reactions that we see.

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