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FBI v. Apple: One year later, it hasn’t settled much

Taylor Armerding | Jan. 31, 2017
The brief but high-profile battle a year ago between the FBI and tech giant Apple over unlocking the iPhone of a terrorist never got settled by the courts. And that leaves the battle over surveillance v. personal privacy very much unresolved

That is also the view of Greg Nojeim, director of the Freedom, Security and Technology Project at the Center for Democracy & Technology (CDT).

“The fact that the government was able to access the content it sought without Apple’s assistance undermined its argument that it needed to be able to compel Apple and other providers for the assistance they sought,” he said.

A bit of background

By now, the basics of the case are well known: On Dec. 1, 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, killed 14 people and wounded 22 in a San Bernardino, Calif., shooting rampage. Both were then killed in a shootout with police.

About two months later, on Feb. 9, the FBI announced that it had been unable to unlock Farook’s employer-issued iPhone 5C, and demanded that Apple provide a way to do it.

The fact that the government pulled the plug on the litigation on the literal eve of the hearing speaks volumes about the strength of its legal argument.

Nate Cardozo, senior staff attorney with the Electronic Freedom Foundation

A week after that, a federal magistrate upheld the demand, ordering Apple to disable the security feature that would wipe the data on the phone after more than 10 unsuccessful attempts to guess the passcode.

Apple appealed. CEO Tim Cook said the company didn’t have the capability to defeat that feature, and if it was forced to create a “backdoor” into the device, it would amount to "the software equivalent of cancer" that would endanger the privacy and security of hundreds of millions of iPhone users throughout the world.

More than 30 tech companies including Google, Facebook and Twitter, along with a host of privacy and civil rights advocates supported the appeal.

But, 43 days after the original court order, the FBI withdrew its complaint, saying it had hired a vendor that was able to break into the phone. The agency refused to name the vendor or what method had been used to hack the phone.

That, of course, didn’t make the issue go away. While no case since has generated that level of publicity, the conflicts continue. Last October, after a mass stabbing at a Minnesota mall linked to the terrorist group Isis, the FBI said it was seeking to unlock the iPhone of the attacker, Dahir Adan. That potential conflict never made it to the courts.

The same is true of a standoff between the government and WhatsApp, the world’s largest mobile messaging service, which is owned by Facebook. Within the past 18 months, it began encrypting communications, which meant the Justice Department couldn’t eavesdrop on them, even with a judge’s wiretap order.


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