The Latest on the FBI/Apple Legal Battle

Episode Notes

Transcript

Lawyer 2 Lawyer: The Latest on the FBI/Apple Legal Battle – 4/3/2016

 

Intro: In this case what they’ve asked Apple to do is not to decrypt the contents of the phone, which has also been a very controversial point over the arch of what I’d like to call the crypto wars. But instead they’ve asked Apple to remove several security features on the phone.

 

I think we all recognize that what’s at stake here is not this phone or this particular set of contents. It’s what’s the precedent that’s going to be said.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

J. Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Craig Williams coming to you from Southern California. I write a blog called May it Please the Court.

 

Bob Ambrogi: And this is Bob Ambrogi coming to from near Boston, Massachusett. I write a blog called Lawsites.

 

J. Craig Williams: Before we introduce today’s topic, we’d like to thank our sponsor, Clio, an  online practice management program for lawyers at www.GoClio.com.

 

Bob Ambrogi: Today we’re going to be talking about the ongoing legal battle between the FBI and Apple Incorporated. They of course have been engaged in a battle over privacy and security. In the past, Apple has been ordered by district court under the All Writs Act of 1789 asking Apple to assist in extracting data from locked iPhones and for use in criminal investigations. The legal battle has reached a boiling point when the FBI and Apple engaged in dispute over whether federal court may compel Apple to create new software that would enable the FBI to unlock an iPhone 5C it recovered from one of the shooters in the terrorist attack in San Bernardino, California. This data could provide the FBI – it says – with valuable information about where the shooters were after the attack and the individuals they contacted.

 

J. Craig Williams: Well, Bob, in a message to customers from Tim Cook, the CEO of Apple, he wrote, “The United States government has demanded that Apple take unprecedented step that threatens the security of our customers. We oppose this order which is implications far beyond the legal case at hand.” Mr. Cook discussed the tragedy of the San Bernardino attack, their assistance with the FBI and the FBI’s use of the All Writs Act and the threat to data security. In his closing message, Mr. Cook wrote, “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.” The case is ever changing. Latest news revealed yesterday that the US attorney’s brief to the court said on Sunday March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s phone. Testing is required to determine whether it’s a viable method that will not compromise data on Farook’s phone. If the method is viable, it will need some assistance from Apple setting forth the All Writs order in the case.

 

Bob Ambrogi: So is this a threat to our data security or will Apple’s assistance to the FBI provide key information needed to prevent future terrorist attacks? Today on Lawyer 2 Lawyer, we are going to look at this battle between the FBI and Apple and we’ll discuss the San Bernardino matter, encryption, privacy, national security and possible future impact of this case.

 

J. Craig Williams: So, Bob, we’d like to welcome our first guest today, that’s David O’Brien. He’s a senior researcher at the Berkman Center. He has contributed legal and policy research to a variety of Berkman Center’s projects, spanning the topics of privacy, cloud computing, copyright, cybersecurity, interoperability, and internet governance. David currently leads the Berkman Center’s efforts in the cybersecurity and the Privacy Tools for Sharing Research Data project. David also serves on the advisory board for Harvard’s Open Data Assistance Program. Welcome to Lawyer 2 Lawyer, David.

 

David O’Brien: It’s a pleasure to be here.

 

Bob Ambrogi: Also joining us today is Robert Cattanach. Robert is a partner with the international law firm Dorsey & Whitney and a former justice department attorney. Bob has represented numerous clients in breach responses, development of privacy policies and procedures, and provided counsel to corporate boards of directors, and audit committees on matters of cybersecurity, privacy and internal governance. Bob’s long history of interaction with key government agencies began with his service of the United States Department of Justice, Civil Division, which represents the interests of the United States and its agencies, including the CIA, FBI, Departments of State, Defense and Energy. His longstanding relationship with those agencies enables him to engage with key players on major cyber issues, and be the “go-to” attorney for all matters cyber. Welcome to the show Bob Cattanach.

 

Bob Cattanach: Thank you.

 

Bob Ambrogi: David, I’m not sure how familiar you are with what’s just happened in the last day or two; or if one of you can kind of bring us up to date on the most recent news before we dig more deeply into this case.

 

David O’Brien: Sure, I’d be happy to do that. So the last 24 hours have been pretty busying to say the least. We found out that on Sunday, March 20, the FBI was contacted by an outside party who is yet to be named, and that party presented a method for obtaining access to the phone in question in this case. And what happened on Monday late afternoon in Eastern Time, the Department of Justice and the FBI filed a motion to vacate the hearing that was supposed to be this afternoon on the 22nd. And they also asked for continuance to follow up on April 5. So during that time they hope to test out the method to see if it’ll actually work and see that it doesn’t delete any of the data and they’re able to preserve it using the method.

 

J. Craig Williams: Before we go too into the topic, obviously we’ve got three players in this case. We’ve got Apple, we’ve got the Department of Justice in the FBI, and we have the judge. And quite interesting today in the California State Bar’s news articles, they published an article that said in Christmas of 2003, a twin engine Cessna plane crashed into the home of then-lawyer – I think she was in a US attorney’s office at the time – Sheri Pym. So apparently, a very unflappable judge because she answered all of the questions for the news reporter about the plane crashing into her house and was allotted for her ability to handle such a situation. Is that the kind of judge she is in court as well?

 

Bob Cattanach: This is an enormous amount of pressure to place on any judge, much less a federal magistrate judge who’s sort of at the lower end of the pecking order in the judiciary. Very accomplished to be sure, but this is a lot of important policy questions dumped on her lap to resolve and of course it would wind its way up to the district court itself and then the court of appeals for sure. After that, who knows? So the policy issues are tough ones and the developments over the last couple of days really don’t do much to resolve them if you think about it. It just kicks the can down the road aa bit. But all the same sorry issues that this case raised are still going to be facing is if not in this case, the next one.

 

Bob Ambrogi: I wondered about that because somebody today in an article characterized this latest move by the FBI as possibly a retreat in this legal battle. To my thought, I can’t imagine why the FBI would necessarily want to retreat because Bob, as you say, they want this issue decided at some point, don’t they?

 

Bob Cattanach: Yeah they do, but I think ethically they had to tell the judge. Let’s just imagine for a moment – it doesn’t take a great deal of speculation, just some common sense. Clearly they had someone saying we can do this. They had represented to the court – as officers of the court – we can’t do it. Nobody can do it except Apple. Now what do they do? One gets the sense that they maybe had some I’s to dot and T’s to cross about how the technology worked, but we have to believe that they vetted whoever the source was so that they could unlock it very carefully; the technology must have checked out for the most part. So they were in between a rock in our places. As much as they wanted a decision, they really couldn’t in good faith go to the judge and keep this information to themselves. So I think procedurally the only thing they could do was to advise the judge and say let us get back to you on this. So was it a retreat? I don’t know so much a retreat. I think it was clearly a blow to their position in the sense that they represented they couldn’t be done and now I’m saying it can be done. So credibility may be a strong word, but it is certainly testing the technical accuracy of their representations to the court.

 

Bob Ambrogi: I wonder if we could talk about the legal issues that are at play here a little bit more. I know there are several, but I think one of the more interesting ones is this All Writs Act which I suspect a lot of people really have never heard of until it started being talked about in this case. I understand it’s been used in some other cases as well. David, can you give us any background on what this is and how it comes to play in this case?

 

David O’Brien: Sure, I’d be happy to. So it’s a very old law as I’m sure we’ve all heard many times now in the media. 1789, in fact, it goes back quite a ways. In fact, a little bit before the Bill of Rights was ratified just to give a sense of just how old it is, and then back then it was intended as a gap filling measure. So we had all these different procedures for doing what we now call general writ activity, and it was quite desperate. And the idea was it wasn’t really clear what was covered and what wasn’t at the time and so the All Writs Act was intended to fill many of the gaps between different things that courts were already authorized to do. And it’s actually used quite a bit. I think people have emphasized the fact that it’s so old and all of these things but one of the very interesting and almost elegant things about this is that it is so old and that it’s still used today quite frequently. We don’t quite typically hear about it very much and it will typically be used behind the scenes in sealed cases because at the very heart of it, the statute enables a court to compel a third party who has some sort of interest in a case to do something to assist in some manner. And in this case, it’s the Department of Justice and the FBI asking Apple to assist with removing some of the security features on the phone. There isn’t a lot along this area as well and this sort of underscores the point that we don’t hear about it very often, it’s something that happens at the very lowest levels of the court often with magistrates who receive these applications on behalf of the government to compel these third parties. There have been cases over time. Back in the 1970’s, there’s now a very well known Supreme Court case involving the New York Telephone Company and they contested the scope of the All Writs Act in an application and the case made its way up to the Supreme Court. What we had out of that was a three pronged test which helps the court determine – when they apply it to a fact in a particular case – whether the application of the writ and compelling a third party to do a particular act is unreasonable or not.

 

J. Craig Williams: What is the technological issue here? Is this a one time can you just unlock the phone? Or would realistically Apple be required to write some kind of code to give to the FBI? Why couldn’t the FBI hand the phone over to Apple, they write the code, unlock the phone and hand it back so the FBI never learns the code?

 

David O’Brien: That’s very close to what they had asked the court to compel Apple to do as a matter of fact. There’s been this long debate here in the United States that goes back decades. But in recent memory – the last two years – we’ve seen the director of the FBI, James Comey, talking a lot about what he sees as an alarming trend; he calls it going dark. That companies are implementing easy to use encryption and they’re doing so in a way where it puts communications and data out of the reach of the government even when they would otherwise have the lawful authority to access the data. So in this case what they’ve asked Apple to do is not to decrypt the contents of the phone, which has also been a very controversial point over the arch of what I’d like to call the crypto wars. But instead they’ve asked Apple to remove several critical security features on the phone. One of which is this auto erase feature which if you fail to enter the passcode correctly after ten tries, the contents of the phone are automatically deleted. Another one of these features is a delay in between each consecutive entry of a passcode. So each attempt when you try to put in the passcode of the phone, there’s a delay that the phone will only allow you to enter so many within so long a period of time. And so it makes it very difficult to group force its way into the phone or try every possible combination. So what has been requested of Apple here is to write some software which would remove these security features on the phone and enable the FBI to try all the password combinations possible which would then lead to the phone being unlocked. The contents of the phone would then be decrypted and then they would be able to read the data on the phone.

 

J. Craig Williams: And what rights of privacy does Farook have? I mean, he’s dead, so doesn’t that right of privacy die with him?

 

Bob Cattanach: Well, it’s even a little bit more than that because it wasn’t indeed his phone. It was the county’s phone and they have already said they wouldn’t object to Apple doing whatever it takes to allow the FBI to access its contents. So you have this odd situation in that sense and as David just said, this is a measured step that the FBI has asked for, just help us with the auto wipe feature. But I think we all recognize what’s at stake here. It’s not this phone or this particular set of contents, it’s what’s the precedents that’s going to be set. This was I think how the issue was interestingly framed on the one hand by Apple saying wait a minute, this is the slippery slope, and the FBI is saying no, we just want this one assistance. Even though it’s now come to light, they’ve made this request in similar fashion in other occasions as well. I think it’s unavoidable to engage on the fundamental policy questions that are on both sides of this dispute and they’re not easy ones.

 

Bob Ambrogi: We need to take a short break for a word from our sponsors. We will be back in just a few moments, please stay with us.

 

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer, this is Craig Williams and with us today are David O’Brien and Bob Cattanach along with my co host, Bob Ambrogi. In our last segment we were discussing the FBI and Apple legal battle and the issues of privacy and thwarting issues that surround this case. Robert, what kind of resolution are you predicting the court’s going to reach when or if they finally get this issue in front?

 

Bob Cattanach: Predicting the issues of risky business, but I think there’s a very good chance that this fight is going to go away. The FBI’s got a little bit of egg on its face. They made representations that – I’m sure in good faith – that are now turning out to be not true and I think it will be extremely unlikely. Let’s say this case is over but-

 

Bob Ambrogi: The Boston Globe up where I am recently had a story that’s suggesting there’s a case in Boston that may raise  this issue. I think it’s not clear and there’s a case also in Brooklyn I believe that involves this All Writs Act in a similar request. As you say, I think FBI director Comey tried to characterize this as a one shot deal or a one time deal and I think he later backtracked on that position because as you say, this is a slippery slope.

 

J. Craig Williams: So ultimately, where are we going to go? What’s going to be the decision? Because this issue has to get solved and some point in time. So, David, what are you predicting?

 

David O’Brien: It’s a great question. I think Robert’s right that this particular case is going to go away. The All Writs Act is kind of a special beast because of the way that it’s applied is on a case by case basis, although certainly you can set a precedent and other courts may follow that precedent. It’s possible that we could have a difference in opinions. So you mentioned the Brooklyn case in the Eastern district of New York. In that case, we had the magistrate judge issue a 50 page opinion. That is so unusual by the way for a magistrate judge to do, and it came out in the favor of Apple. Now it involved a slightly different version of both the hardware and the software in this case and it’s been part of the story that successfully Apple has been increasing the amount of encryption and security features on the phone over the last several years. And now we’re starting to reach a point where there are rumours reported by the New York Times that Apple is working on a version of a phone that’s going to be impervious to these types of requests under the All Writs Act. One way of thinking about what the FBI and the Department of Justice were able to request in this case was that it’s something of a security vulnerability. The fact that you can update the phone in this way, alter the operating system to remove some of the security features, that’s basically a bug that Apple is going to patch. So I absolutely agree with Robert. This case, this particular fight in the San Bernardino case will likely go away. There are no question there are others. Cyrus Vance, the Manhattan district attorney is quite vocal about the 175 bricked phones essentially that he has on his desk that do nothing more than serve as paperweights I imagine because they can’t access the contents of those phones. And he’d love to see a way under state law to access the data on phones. So we’ve got both competing federal and state issues. In my mind, the ultimate question is who’s going to resolve it and where’s the right place for this to be resolved. So this in a way is like the second or third avenue that we’ve seen in the debate. The 1st was when the FBI was testifying both before Congress and then some of the briefings that has provided an executive branch of the government asking for solutions as far back as 2010. They have not been successful, of course they haven’t explicitly asked for some sort of legislative solutions But clearly, the debate has been such that they’re trying to raise awareness of what they see as a big problem. Now here we are, this is like the third avenue if you take those first two other avenues. The third avenue is to ask a court to interpret existing law in a way that’s favorable to the outcome of the case. And I don’t know that it does them any favors that the case is coming to something of a resolution. Maybe not what we’ll see in early April, but if this case goes away, for them, this case had really strong facts. And if the court were to be swayed, it seems like it would be on these types of facts where you have an instance of domestic terrorism, the perpetrators involved in the case are deceased, their privacy has died with them. The city of San Bernardino actually owns the phone and has authorized the government to gain access to the contents of it and so on. So it’s hard to imagine that if another case came up that it would have these types of facts. But surely there’s going to be other cases pending before courts. Maybe this goes to Congress, maybe they come out with some sort of legislative solution. Just yesterday there was another announcement of an encryption working group with the house judiciary committee and the commerce committee and there are many others within Congress who have vested interest in terms of where this goes in terms of legislation. So all questions at this point, but we’re likely to see some action, it’s just not really clear what the ultimate thing is that comes out, whether it’s legislative resolution or something else.

 

Bob Ambrogi: There’s another legal question that we haven’t talked about which is the first amendment issue. Amicus and I think the Electronic Frontier Foundation – I think Apple itself – has raised this argument that the code is speech and that if it’s being forced to write code for something it doesn’t agree with, it’s essentially a first amendment violation here. Bob, what do you make of that argument?

 

Bob Cattanach: It’s an intellectually interesting argument. I think it’s a tough one to face, a very important precedent on. It’s not well developed in the law, sort of compelled speech. Just very briefly, I think David did a very nice job on setting the table on what one might expect. There is one other option that I wish that we could have resolved in that fashion which is that the FBI and law enforcement could sit down with Apple and say let’s figure out some resolution. Because courts are very poorly equipped to make these very broad policy judgements and balances. Unfortunately, the Congress has shown not a great deal of ability to wrestle with such tough issues. So where do we get some reasonable resolution? And I think the most likely chance – even though it’s not particularly imminent right now – is the possibility that somehow the tech companies can sit down with law enforcement and say how do we avoid these kinds of situations from coming up in the future.

J. Craig Williams: Let’s take a step back from the precedent issue and maybe make some gross generalization that it really is an issue basically between the government’s right to survey its citizens and its citizens rights to their own privacy. When you think about it on that level, what are the policy arguments in favor of either side? David, do you have some thoughts on that?

 

David O’Brien: Yeah, and actually I would tweak your framing a little bit. Certainly, privacy is a core interest in the overarching debate and this case is really more about security than privacies since the privacy interest has more or less gone with the person who possessed the phone as the perpetrator. And I think it really is about both, though, security and privacy. Security is a means to afford people privacy. It’s actually quite refreshing I think to have companies who are speaking out in a way that puts consumers’ interests first in terms of security issues. To think of the relentless pace of news that we hear about data breaches and it affects the government, it affects consumer retail stores, it affects internet websites, it affects huge companies like Sony. And so many people are having difficulties with vulnerabilities in code and keeping data secure. So it’s somewhat refreshing to hear a company speak out quite strongly about how they feel. It’s more in the interest of the public to have secure software than it is to balance that equation on the face in favor of national security interests. But that’s the other part of it of course is national security interests; we could have very secure devices, we’re going to lose something in the process. It’s not really clear. I mean, these are almost orthogonal issues in a way. How do we balance your garden variety cybersecurity issue of how your data stays safe as it’s in transit and how does it rest on the phone of how do we defend the nation against the types of attacks that we’re likely to see in the future.

 

Bob Ambrogi: Does all of this become a mute question if in fact the government has figured out a way to get into the phone without Apple’s cooperation?

 

David O’Brien: Possibly.

 

Bob Cattanach: Sure, I think for this case it is mute but go ahead please.

 

David O’Brien: No, no, go ahead please, Robert.

 

Bob Ambrogi: I don’t mean in this case but I mean as an issue going forward. What happens?

 

Bob Cattanach: Well, courts don’t like to decide issues in a vacuum that don’t need decision. If the phone is accessed, then the case just goes away. I can not imagine a magistrate judge venturing out with an opinion that’s sort of a declaratory assessment of how one might rule under other circumstances now that this case has gone away as an advisory opinion. I would be very surprised if this case had any light left ot it. So I think the shift will occur. You’ve got, as you mentioned, the case in Brooklyn where the magistrate judge has – and I agree with David – a really thorough opinion, very well reasoned, very thoughtful; people can agree or disagree about the conclusion but you can’t fault the thought that went into it. So that opinion is certain to be appealed and has – I’m sure – gone up to the district court itself and I would be fairly certain that it would go up to the second circuit court of appeals. So that will wind its way through. And as David mentioned, not nearly as compelling a case as what we’ve had in San Bernardino. So I think that’s one of the reasons why the FBI shifted its focus to San Bernardino. So maybe the technology that they’ve now acquired, apparently, can work in that phone as well, who knows. But again, we’re just delaying for another day the very challenging question of how do you balance these two competing interests.

 

Bob Ambrogi: Bob, you’re a former DOJ attorney. Would you be advising your client the same way Apple’s attorneys are advising their client or would you be advising it to cooperate more closely with the FBI?

 

Bob Cattanach: No, I think Apple had to make a stand. There are times when you don’t mind losing, but you’d rather have a court say you lose, help them out, than to have to – especially after the case was daylighted – to have to reverse your position very publically taken. We protect our customers’ privacy, we have all these features that Tim Cook could not reverse that position publicly. I’m sure he would have been happy if the court told him to cooperate and there would have been other issues, but if you look at the dynamics of decision making processes, you’d rather have a judge tell you to do something that you don’t want to do than swallow hard and do it without being told.

 

J. Craig Williams: Well, gentlemen, it looks like we’ve just about reached the end of our program, and at this point in time we’d like to invite both of our guests to share their final thoughts and their contact information. So, David, let’s start with you.

 

David O’Brien: Sure. Well, I think this is a fascinating case to watch from the sidelines and it’s really been interesting. Instead of arguments and debates that have been presented around the issues, we do have to keep our eye on this overarching debate because this is obviously not the first time we’ve had this conversation about the public’s ability to use encryption. And I imagine it’s a conversation we’re going to continue to have long into the future. What I would positive to your audience is that advocates of Apple’s side in this case have suggested that we ought to come out in favor of security, and the reason I think that is is because there are some risks on the horizons that we may not have a good handle on just yet. And perhaps we don’t want to tip the scales too far in favor of national security when we also have to worry about our own security interests as consumers in the case. And perhaps that means that as we put things to the equation and try to weigh out the different issues that would come out mostly in favor of security. But I would suggest actually it’s going to be too hard to do that. Those are issues that are so difficult to quantify. Maybe Congress can make some headway on this, but I imagine we’re going to be debating the issue for a long time. In the terms of contact information, people are free to send me an email. My email address is on our website at Cyber.Law.Harvard.edu. You can also reach me on Twitter, @D_OBrien and I look forward to continuing the conversation.

 

J. Craig Williams: Great, thank you very much David. Robert, your final thoughts and contact information?

 

Bob Cattanach: Sure. We’ve hardly heard the last of this yet. The technology is evolving rapidly. We are in a cyber arms race between the people who want to get in and the people who want to keep it out and I think that will continue to escalate as the technology evolves and I think all one can intelligently say is stay tuned. These are difficult issues. I agree with what David said earlier. It’s a healthy thing for a democracy to have an open and robust debate about them. Maybe there isn’t a clear winner or loser but I think it’s good to have the conversation engaged. As far as contact information goes, probably the best way would be to email me at [email protected]. Thank you very much for having me.

 

Bob Ambrogi: Thank you very much. We’ve been talking with David O’Brien of the Berkman Center and Robert Cattanach of Dorsey & Whitney about the Apple v. FBI case. Thanks to each of you for taking the time to be with us today, we really appreciate it.

 

David O’Brien: My pleasure.

 

Bob Cattanach: Indeed.

 

J. Craig Williams: And Bob, that brings us to the end of our show for today. I’m Craig Williams with Bob Ambrogi for Lawyer 2 Lawyer. Thank you for listening. Join us next time for another great topic. When you want legal, think Lawyer 2 Lawyer.
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