The recently withdrawn action against Apple involving law enforcement access to an employer-provided iPhone in the terrorist incident in San Bernardino, California is not an isolated case. In fact, as will be discussed later in this article, there are at least twelve cases pending in which Apple is refusing to provide assistance to law enforcement in cracking iPhone code on newer iPhones1.
According to the November 2015 “Report of the Manhattan District Attorney’s Office on Smartphone Encryption and Public Safety,”2 “between September 17, 2014 and October 1, 2015, it was unable to execute approximately 111 search warrants for smartphones because these devices were running iOS8. The cases to which these devices related include homicide, attempted murder, sexual abuse of a child, sex trafficking, assault, and robbery…”3
The recent San Bernardino Apple case has attracted worldwide attention, but is not the first or only instance in which the U.S. and other governments have demanded access to a device containing defendant data, or even prospective access to all encrypted data. Sometimes the demand for access has entailed total government access to all devices sold by a company in particular country, e.g. BlackBerry sales in India, Saudi Arabia, Indonesia and the UAE. In these cases negotiations went on for years.4
A coalition of the willing
Apple, Microsoft and other major American companies have formed coalitions to block US government access to data, whether stored on iPhones or on cloud servers outside the U.S. One current position, supported by a U.S. judge in New York in a lengthy memorandum in relation to a drug case5, is that the All Writs Act, a piece of US legislation adopted in 1789, is not the appropriate vehicle for filling in the gaps in U.S. law which Congress has not been able to fill through amendment of existing legislation related to cybercrime and data privacy, for example.
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National security vs. criminal activity
One Japanese lawyer interviewed for this article, who had conducted research about the US Apple cases, interpreted the reactions in the two different courts to mean that there was stricter treatment of a national security case (San Bernardino) than a drug/criminal case (New York), however that does not appear to be the case when we observe other severe measures taken in criminal cases in the US, e.g. one in which the accused, a former police officer asserting his 5th Amendment right not to self-incriminate, is being imprisoned indefinitely in a child pornography case6 until he unlocks several devices which police seek to access, and a drug case in Los Angeles involving the unlocking of a biometric lock rather than obtaining a password. These cases will be discussed in Part III of this article, as well as law in other jurisdictions with respect to similar searches and seizure involving devices and computers.
Enlightened self interest?
Some critics say that Apple is not as interested in consumer privacy in general, but mainly in protecting its business. As will be discussed, BlackBerry, a Canadian company, was subjected not merely to individual requests by law enforcement to access data in its products in relation to specific searches, but by sweeping policies of a number of governments threatening to exclude its products from their markets unless it provided source code for all its devices. These cases were receiving quite a bit of attention a number of years ago, and then there was not much coverage. Recently, however, there has been new discussion about Blackberry and privacy in Canada alleging that the Canadian police have obtained access to BlackBerry’s “global encryption key capable of encrypting nearly any message sent on its platform.”7
The People’s Republic of China adopted a new cybersecurity and counter-terrorism law last December, which “mandates that internet firms and telcos doing business in China provide law enforcement with decryption keys in terrorism cases. Analysts and foreign firms are waiting to see how far China goes in enforcing the controversial legislation, particularly in light of Apple’s standoff with the FBI.”8