Five Insights into Apple’s Battle with the FBI

GW Law Professorial Lecturer Paul Rosenzweig weighs in on whether litigation could set a precedent for future law enforcement investigations.

February 22, 2016

By Brittney Dunkins

Silicon Valley heavy hitter Apple Inc. took a controversial stance against the FBI last week, when the company refused to grant the agency access to an iPhone owned by Syed Farook, one of the suspected gunmen in the Dec. 2 shooting in San Bernardino that left 14 people dead and 22 people injured.

In a public letter, CEO Tim Cook asserted that removing the iPhone’s encryption for a legal investigation, as the FBI requests, would endanger customer data and set a dangerous precedent that prioritizes national security over privacy.

However, in a letter posted Sunday, FBI Director James Comey asserted: “San Bernardino litigation isn’t about trying to set a precedent or send any kind of message.”

George Washington Today reporter Brittney Dunkins spoke to Paul Rosenzweig, George Washington University professorial lecturer in law, about the case and Apple’s public stance.

Q: What are Apple’s obligations to comply with the FBI request to unlock Syed Farook’s iPhone?
A: In general, the rule is that the grand jury is entitled to “every man’s evidence.” Unless the court vacates the order or the order is overturned on appeal, Apple is obliged under law to follow the court’s direction. I assume that if they exhaust their appeals and still lose, they will do so. If they don’t, they can be held in contempt and fined. In short, Apple is just like you and me—if we get a valid court order, we ignore it at our peril.

Q: Apple refused the demand in a public letter. Is this a common tactic used by major corporations who wish to take a stance against a request of this kind?
A: It is a very uncommon tactic. Indeed, it is pretty close to unprecedented. The letter has no legal bearing, of course, but the court has now directed Apple to file a legal response and said that it will hold a hearing in March. I imagine that going forward, Apple’s legal pleadings in court will make some of the same points that Tim Cook did in his letter, as well as other legal arguments.

Q: Are there other high-profile examples of companies that were compelled to comply with or were able to avoid similar requests from federal agencies?
A: This is an increasingly common set of circumstances in recent years. The most notable involved a company called Lavabit that tried not to hand over the contents of the email communications of their customers. They lost, in the end, and then closed their doors, rather than continue to run a system that—they said—would be misused by the federal government. Another company, Silent Circle, closed preemptively, before the government came to them. And, of course, most of these companies are subject to requirements of disclosure overseas as well. China, for example, makes demands of Apple that are very intrusive.

Q: What is the privacy principle at play here? Would this—as Apple says—set a “dangerous precedent?”
A: That’s hard to say. At the retail level, there isn’t a real privacy principle because the phone in question was actually Farook’s work phone issued by San Bernardino County, and they have authorized the FBI to access the phone. At a broader level, however, the principle is very large. Once Apple goes down the road of creating new code to access customer data when ordered by a court, there is very little to limit that obligation. It will apply not just to this phone, but also to the 175 other phones that the NYPD wants unlocked and to all the phones of political protesters in China that the Chinese government wants to see. Even though in the near term this is about a single phone in a very significant national security case, in the long term it is, indeed, about a precedent.

Q: What movement can we expect to see on this issue in the coming months on the part of Apple or the FBI?
A: Congress has already said that it will hold hearings, and the first is scheduled for early March. On the Senate side, the chair of the Senate Intelligence Committee has said he will introduce a bill to make it illegal to refuse to cooperate with the FBI in its decryption efforts. It is difficult to really say where this will wind up in the end.