Apple Fights Back to Protect Consumer Privacy

On February 16, 2016, United States Magistrate Judge Sheri Pym ordered Apple Inc to assist law enforcement agents in searching an encrypted smartphone made by Apple that was seized in the course of executing a search warrant. The court’s order requires Apple to provide a custom version of its operating system, iOS, to allow investigators to repeatedly try different passwords without being locked out after a certain number of attempts, or the device wiping itself.

More specifically, Judge Pym ordered Apple to provide reasonable technical assistance to (1) bypass or disable the auto-erase function whether or not it has been enabled, (2) enable the FBI to submit passcodes to the Apple Device for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the Apple Device, and (3) ensure that when the FBI submits passcodes to the Apple Device, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

The application was brought under the All Writs Act, 28 USC § 1651, which is an 18th-century catch-all statute that at its core allows courts to issue a writ, or order, to compel a person or company to do something. However, Judge Pym’s order to compel a major smartphone manufacturer under this Act to provide the government with a tailor-made option to bypass some of its security measures appears to be unprecedented.

Apple has issued a public response announcing its intent to oppose Justice Pym’s order, stating that such an order constitutes a “backdoor” measure and would set a dangerous precedent in allowing the government to access encrypted data on anyone’s device. Other technology companies, including Google and WhatsApp, have indicated their support for Apple’s stance in protecting consumer privacy, although Bill Gates has publicly disagreed with their stance.