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Why Apple and the FBI are fighting over access to the San Bernardino shooter’s phone

Tim Cook says Apple shouldn't create a key to unlock its encrypted data.
Tim Cook says Apple shouldn't create a key to unlock its encrypted data.
Stephen Lam/ Getty Images

A federal court has ordered Apple to help the FBI break into the iPhone of one of the San Bernardino shooting suspects in order to gather evidence — and Apple is refusing to do it.

This is a clash that has been in the making since 2014, when Apple announced it was throwing away the encryption keys that had previously allowed it to help law enforcement unlock customers' iPhones. At the time, the company was trying to beef up its reputation for customer security in the wake of revelations that it had participated in the National Security Administration's data collection efforts.

But the conflict between Apple and the FBI is now boiling over in a very high-profile case centered on one of Americans' biggest fears: terrorism. The fight could eventually end up at the Supreme Court.

The FBI wants to know who Syed Farook was talking to

One of the big questions in the San Bernardino attack is whether the shooting really was linked to ISIS, and whether the attackers, Syed Farook and his wife, Tashfeen Malik, planned the shooting with others.

The FBI wants more information about who Farook and Malik communicated with and where they traveled before the attack, and they got a search warrant to obtain that information.

But the FBI isn't able to get into Farook's phone. Only the person with the passcode for an iPhone can access the data inside. After 10 attempts to break into the phone, the data is permanently erased. And in the San Bernardino case, even though Farook's phone was owned by his employer, who granted the FBI permission to search it, the only person with a passcode (that we know of) was Farook.

The FBI was able to get data from Farook's backups to iCloud, which isn't encrypted. According to a court filing, that data showed that Farook was in touch with some of the victims of the shooting in the months preceding it. But he disabled iCloud backup about six weeks before the shooting, which federal law enforcement officials argue shows he might have been trying to hide evidence from his phone.

Federal prosecutors asked Apple to unlock the phone using one of the oldest laws on the books: the All Writs Act of 1789, which said judges can "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Apple argues that this is a dangerous threat to users' security

The US District Court in California ordered Apple to create software that could be loaded onto Farook's iPhone in order to unlock the device — what the New York Times described as a "skeleton key" to the encrypted data.

The government argued that it could create software that would work only once on one phone. But Apple, in a statement, said even creating the technique is too big of a threat, because it could easily be reused on any phone.

Apple argues the government's request is tantamount to asking for a "back door" that would allow people without a passcode to access protected data — something software companies have strongly resisted.

"We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country," Tim Cook said in a statement:

We believe it would be in the best interest of everyone to step back and consider the implications. While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

As Vox's Tim Lee wrote in 2014, encryption without back doors is a standard feature of web browsers and easily available for emails and hard drives. And building a back door accessible to the FBI opens the possibility that more repressive governments will ask Apple for the same favor in order to access their citizens' communications.

This will be litigated in the courts. But Cook's statement shows he realizes that in terms of public opinion, Apple is walking a fine line.

Decrying Apple's encryption policy in 2014, FBI Director James Comey argued that the federal government needs access to encrypted cellphone data because it might someday need that information to stop a terrorist attack. Americans are far more worried about terrorist attacks — particularly in the wake of San Bernardino — than they are about the government spying on them.

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