The Apple Encryption Case

December 1, 2015

Almost every day, the press carries some latest assertion by Apple or assorted self-proclaimed encryption experts that smartphone devices must be unalterably encrypted. A virtual army of bloggers and lobbying groups have joined the fray to ramp up anti-government paranoia and convince users and the public that highly encrypted smartphones are good for the world. Never mind that the capability primarily benefits terrorists and criminals.

This public relations blitz was spun up several weeks ago in conjunction with a lawsuit involving Apple in a New York based Federal District Court where the U.S. Department of Justice attempted to compel Apple to “assist in the execution of a search warrant” involving the iPhone 5s of a drug dealer by the name of Jun Feng. The court documents are readily available on-line (USDC EDNY Case 1:15-mc-01902-JO), but it seems like no one writing about the matter actually reads them.

It would be seen that the iPhone was an iOS 7 version and the contents are readily accessible by Apple as it had done many times before for law enforcement.  However, the case was used for little more than public relations grandstanding purposes about how new Apple phones and operating systems will be impregnable by anyone but the user.

The DOJ statement to the court notes that Apple “claim[ed] for the first time that assisting in the execution of the warrant could be unduly burdensome and could ‘tarnish the Apple brand’.” Apple’s legal counsel in its written communication and verbal arguments with the court then raised the spurious argument that Apple was not a telecommunications provider under the 21-year-old Communications Assistance for Law Enforcement Act (CALEA) and therefore didn’t have to comply with the court order.  The DOJ agreed, they were not subject to CALEA; but that didn’t excuse complying with a valid court order to do something they were entirely capable of accomplishing.

At the moment, the fate of the case is uncertain because Feng plead guilty to the charges, and Apple is arguing that the matter is now moot.  DOJ argues that the matter is still relevant in order to further investigations in the case. The hiatus over the past three weeks has provided the pro encryption zealots going in the press – especially in the UK where the Investigatory Powers Bill is being discussed in Parliament.

Two issues in the case are being ignored. One is that Apple in almost every jurisdiction outside the U.S. is regarded as an electronic communications provider and therefore subject to longstanding decryption assistance requirements worldwide. Secondly, smartphones are significant components of modern communication network infrastructures that have more processing power and storage than legacy central office digital switches. Apple today, like almost every other significant smartphone vendor, is a major participant in the design of that infrastructure in global industry mobile standards activities.

Exculpating smartphone vendors from critical national communication infrastructure compliance requirements worldwide, including refusing to comply with legitimate court orders, is not a tenable outcome. Few if any nations would tolerate it.