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Apple Files Challenge to FBI's Court Order to Create Back-Door

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By Jonathan R. Tung, Esq. on February 25, 2016 2:57 PM

The clock is ticking for Apple, which has resolutely made it clear again and again that it has no plans to comply with a recent California Magistrate's court order to assist the FBI into breaking into San Bernadino Syed Farook's iPhone. Apple had until tomorrow to either comply with the order or formally submit a challenge in court. Today, Apple submitted its formal opposition to the federal court order.

FBI director James Comey has been near the epicenter of what can be called a privacy-debate hurricane. He recently let slip that the outcome of the highly contested court order would "be instructive for other courts" when determining how far companies and other parties must go in order to help government hack into their products in the name of national security.

"It's About the Victims and Justice"

Although no one would deny the scale and tragedy of the San Bernardino shootings, skepticism is at a fever-high. So, Comey's public statement meant have been widely scrutinized. However, Comey and the FBI insist: "[t]he San Bernardino litigation isn't about trying to set a precedent or send any kind of message. It is about the victims and justice."

"It's Like Cancer"

Tim Cook, Apple's CEO, had a bluntly less sanguine view of the Magistrate Judge Pym's order. The order represents a means for the government to have companies write code to defeat their own security. According to Tim Cook, it is "the software equivalent of cancer."

Justified Skepticism

Perhaps Tim Cook and others are correct to be wary of government attempts to gloss things over. According to The Wall Street Journal, the phone company is already embroiled in a dozen other cases where local law enforcement are also trying to hack into iPhones -- and those cases don't involve terrorism. And that does nothing to allay the fears of privacy advocates. What the FBI would like is a backdoor skeleton key that would deactivate the iPhone's security measures that delete the phone's data if too many unsuccessful attempts to unlock are made. This would allow rather elementary brute-forcing of the device.

Contingencies

The latest news is that Apple is preparing for the worst. It's believed that Apple engineers are racing to develop new security measures in the latest updates to their iOS that would make it pretty much impossible for government agencies to break into iPhones using the techniques now in debate in the California Courts. The technology sector has consistently said that there really is no middle ground between what analysts have called privacy and what the government calls national security interests.

The All Writs Act

The government has so far dusted off and polished a rather arcane rule more than two centuries old and applied it to smartphone cracking cases. It is proposed that the law allows the government to secure judicial orders to compel people and companies to do actions within the limits of the law. This is, of course, very broad language, and it has been employed so far by national security types. Whether or not the writ can be understood to mean that government can force companies to assist in breaking into their own devices? That's a debate yet to be settled.

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