After the San Bernardino massacre on Dec. 2, 2015, the FBI lawfully acquired the cellphone of one of the killers and persuaded a federal judge to authorize its agents to access the contents of the phone. Some of what it found revealed that the killer used the phone to communicate with victims and perhaps confederates and even innocents who unwittingly provided material assistance.
Then the FBI hit a wall. It appears that the killer took advantage of the phone’s encryption features to protect some of his data from prying eyes unarmed with his password.
The cellphone was an iPhone, designed and manufactured by Apple, the wealthiest publicly traded corporation on the planet. Apple built the iPhone so that its users can store sensitive, private, personal data on the phone without fear of being hacked by friend or foe.
After the FBI determined it could not replicate the killer’s password without jeopardizing the phone’s content, it approached Apple, and representatives of each negotiated for weeks trying to find a way for Apple to help the FBI without compromising the security of the Internet itself. They failed.
Apple has argued that the government has no legal right to compel it to assist in a government investigation, or to compel it to alter or destroy its business model of guaranteeing the safety and privacy of its customers’ data. Apple knows that any “key” it creates for the FBI, once used on the Internet, is itself vulnerable to hacking, thereby jeopardizing all Apple products and negating the privacy of tens of millions, and even exposing the government to foreign hackers.
The Department of Justice (DOJ) has argued that Apple has a legal duty to help solve the mystery of who knew about the San Bernardino attacks so that the guilty can be prosecuted and the rest of us protected from future harm. Its lawyers asserted that the government would keep secure whatever key Apple created.
After the DOJ/Apple talks broke down, the DOJ made a secret application on Feb. 16, 2016, two and a half months after the massacre, to a federal judge for a search warrant for this key to access the killer’s iPhone.
The warrant was improperly granted because Apple was not given notice of the DOJ application. So, the judge who issued the order denied Apple due process—its day in court. That alone is sufficient to invalidate the order. Were Apple a defendant in a criminal case or were Apple to possess hard evidence that could exonerate or help to convict, the secret application would have been justified.