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The Department of Justice Versus Apple Inc. -- the Great Encryption Debate Between Privacy and National Security

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The Department of Justice Versus Apple Inc. -- the Great Encryption Debate Between Privacy and National Security Catholic University Journal of Law and Technology Volume 27 Issue 2 Spring 2019 Article 3 2019 The Department of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy and National Security Julia P. Eckart Follow this and additional works at: https://scholarship.law.edu/jlt Part of the Communications Law Commons, Constitutional Law Commons, First Amendment Commons, Intellectual Property Law Commons, Internet Law Commons, Other Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Julia P. Eckart, The Department of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy and National Security, 27 Cath. U. J. L. & Tech 1 (2019). Available at: https://scholarship.law.edu/jlt/vol27/iss2/3 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Journal of Law and Technology by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE DEPARTMENT OF JUSTICE VERSUS APPLE INC.—THE GREAT ENCRYPTION DEBATE BETWEEN PRIVACY AND NATIONAL SECURITY Julia P. Eckart* I. THE FACTS UNDERLYING THE DOJ–APPLE DISPUTE ........................3 A. Timeline of the Parties’ Court-Filed Documents ......................................6 B. Issues Presented in the DOJ–Apple Litigation ..........................................8 II. APPLE’S iOS9.0 SECURITY GUIDE ..........................................................9 A. Some of Apple’s Encryption and Non-Encryption Security Features ........9 B. Other Hardware and Software System Security Features .......................11 III. DOES THIS CASE PERTAIN TO A SINGLE IPHONE OR ALL IPHONES? .......................................................................................................12 A. DOJ’s Position—It is About One, Single iPhone ....................................12 B. Apple’s Position—It is About Millions of iPhones ..................................14 C. DOJ’s Opposition and Apple’s Reply ......................................................14 IV. DOES THE ORDER COMPEL APPLE TO CREATE A BACKDOOR, A MASTER KEY OR SOMETHING EQUIVALENT TO A MASTER KEY, AND IF SO, WHAT ARE THE IMPLICATIONS? ........................................16 A. DOJ’s Position—There Is No Mandate to Create a Backdoor or a Master Key................................................................................................................18 B. Apple’s Position—It is a Mandate to Create a Backdoor and/or a Master Key ...............................................................................................................19 C. DOJ’s Opposition Position ......................................................................20 D. Apple’s Reply to the DOJ’s Opposition ...................................................22 E. Is Apple Being Ordered to Hack its Customers? .....................................23 V. DID THE COURT EXCEED ITS JURISDICTIONAL AUTHORITY WHEN IT ISSUED THE ORDER PURSUANT TO THE ALL WRITS ACT? ...................................................................................................25 A. The Court’s Jurisdiction and Its Relationship to the AWA ......................25 B. Is There a Statute that Specifically Addresses the Particular Issue Presented in the DOJ–Apple Dispute? .........................................................26 C. The Court’s Underlying Authority to Issue the Order 1 2 THE CATHOLIC UNIVERSITY [Vol. 27.2 JOURNAL OF LAW & TECHNOLOGY Pursuant the AWA ........................................................................................29 D. Apple’s Other Jurisdictional Arguments ................................................30 VI. DID THE COURT APPROPRIATELY USE THE AWA WHEN IT ORDERED APPLE TO PROVIDE THE MANDATED TECHNICAL ASSISTANCE? ................................................................................................34 A. How Far Removed Is Apple From the Underlying Controversy? ...........36 B. Is the Order Requiring Apple’s Technical Assistance Burdensome or Unreasonable? .............................................................................................39 C. How Necessary Is Apple’s Technical Assistance? ...................................44 VI. DOES THE ORDER VIOLATE APPLE’S FIRST AMENDMENT RIGHTS? ..........................................................................................................48 VII. DOES THE ORDER IMPLICATE ANYONE’S FOURTH AMENDMENT RIGHTS? ...............................................................................54 VIII. DOES THE ORDER IMPLICATE ANYONE’S RIGHT TO PRIVACY? .......................................................................................................55 A. The Constitution and an Individual’s Right to Privacy ...........................56 B. The Constitution and a Corporation’s Right to Privacy ..........................57 C. The Common Law and the Right to Privacy ............................................57 D. Standing to Assert a Constitutional Right to Privacy ..............................59 1. Standing and the Individual’s Right to Privacy ...................................59 2. Standing and Jus Tertii ........................................................................61 IX. DOES THE COURT ORDER VIOLATE APPLE’S FIFTH AMENDMENT RIGHTS? ...............................................................................66 A. The DOJ’s Ex Parte Application .............................................................66 B. Did the Government Conscript Apple? ....................................................67 X. HAS ANYTHING CHANGED SINCE MARCH OF 2016? .....................68 XI. CONCLUSION ..........................................................................................69 For approximately forty-three days in early 2016, a very public and legally contentious dispute waged between Apple Inc. (“Apple”) and the Department of Justice (“DOJ”) regarding data encryption and privacy interests of electronic devices versus law enforcement and national security needs to search an iPhone.1 Each party publicly, and through multiple court filings,2 argued their polar * Ms. Julia P. Eckart, USAF Civilian Attorney, B.A. Economics, Mount Holyoke College (1985); J.D., Emory University School of Law (1989). Ms. Eckart is a member of the Florida Bar. The views expressed in this article are those of the author and do not reflect the views of the United States Government, Department of Defense, or United States Air Force. 1 Elizabeth Weise, Apple v FBI timeline: 43 days that rocked tech, USA TODAY (Mar. 15, 2016, 6:26 PM), https://www.usatoday.com/story/tech/news/2016/03/15/apple-v-fbi- timeline/81827400. 2 Id. Although numerous amicus briefs were filed, this Article primarily focuses on the 2019] Encryption: Privacy versus National Security 3 positions as to the validity of a court order, issued pursuant to the All Writs Act3 (“AWA”), requiring Apple to provide technical assistance to allow the Federal Bureau of Investigation (“FBI”) to access the iPhone’s encrypted data. On one hand, the DOJ argued the court’s order was authorized and appropriate; on the other hand, Apple argued the court exceeded its authority when it ordered Apple to provide the described technical assistance in violation of statutory law, the separation of powers doctrine, and various provisions of the U.S. Constitution (“Constitution”). This ping-pong-like debate between the two parties made it difficult to determine what was truly required of Apple, whether it was legally appropriate, and who had the stronger legal position. In the end, the court vacated the order because the DOJ provided notice to the court that it had been able to access the iPhone.4 However, the issue of data encryption and privacy interests of electronic devices versus national security and law enforcement’s need to search electronic devices is still unresolved. This Article is an attempt to objectively examine and assess each party’s legal arguments concerning the court’s use of the AWA to order Apple to provide the technical assistance and identify any areas that may need further explanation before a final determination can be made.5 I. THE FACTS UNDERLYING THE DOJ–APPLE DISPUTE On December 2, 2015, after pledging allegiance to Khalifa bu bkr al bhaghdadi al quraishi, a reference to Abu Bakr Al Baghdadi, leader of the Islamic State of Iraq and al-sham (“ISIS”), Syed Rizwan Farook and his wife, Tafsheen Malik Farook (“Mali”), went to the Inland Regional Center (“IRC”), his place of employment, with two assault rifles and semiautomatic handguns.6 parties’ court-filed documents. 3 28 U.S.C. § 1651 (2015). 4 Order Vacating February 16, 2016 Order at 1, In re the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate #[3]5KGD203 (C.D. Cal. Mar. 29, 2016) (No. 16-10) [hereinafter Final Order]. 5 As there was no final court decision on the legal dispute before the court, this Article is based upon Apple Inc.’s (Apple’s) and the Department of Justice’s (DOJ’s) court-filed documents and publicly available information. 6 Gov’t’s Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search; Memorandum of Points and Authorities; Declaration of Christopher Pluhar; Exhibt Memo at 2, In re Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 (C.D.
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