Tomorrow federal prosecutors and Apple will argue their cases before a magistrate judge in Riverside. I went back and reread the US v. New York Telephone Co. This 1977 Supreme Court case governs the issue of whether Apple must provide a backdoor to Farook’s iPhone under the All Writs Act. While Apple has argued the All Writs Act doesn’t apply and the order violates its First Amendment and due process rights, it would be pretty remarkable if the magistrate judge would go down one of these routes. Which is why I think NY Telephone is going to matter.
So here is the skinny on the low tech NY Telephone case: the feds, who were investigating a gambling operation in New York City, wanted to install pen registers on two telephones. A pen register is a mechanical device that records the numbers dialed on a telephone. The FBI got authorization from a district court to put pen registers on the phones, and an order that the phone company must help them out. Similar to the Apple case, the phone company gave the feds some assistance — it identified the location of the specific telephone lines and the relevant circuits of the two telephone lines. But the phone company drew a line in the sand — it refused to hand over two lease lines to the FBI.
Lease lines are unused telephone lines. The particular lease lines the government wanted hung out in the same terminal box as the gambling-friendly telephone lines. The FBI wanted to connect the lease lines to the suspect lines, install the pen register on the leased lines at a remote location, and then monitor the calls remotely. With this configuration, the FBI would not have to string wires from the telephone box, which as you guessed, would look mighty suspicious.
The Supreme Court upheld the court order requiring NY Telephone to turn over the leased lines to the FBI. It found that the company was not “so far removed” that its assistance could not be permissibly compelled and the phone company’s assistance was necessary. Importantly, it also found the order was not burdensome. The order provided that FBI pay the company the rates for lines, compliance required “minimal effort,” and there was no disruption to the company’s operations.”
One of Apple’s argument in its February 25th filing is that the court’s order to develop software imposes “an unprecedented and oppressive burden” beyond what was okay in NY Telephone. But really what is the burden? There doesn’t seem to be anything so special about coding that makes it more burdensome than any other type of government assistance. Apple points out that there is no operating system that currently exists that can accomplish what the government wants, and any effort to create one will require that Apple write new code “not just disable existing code functionality.” And it will need “to develop new software that destroys the security features that Apple has spent years building.” But as the government points out in its March 10 response, “there is nothing novel or per se unduly burdensome about requiring Apple to write code.”
Developing the code, while real work for sure, is a relatively small piece of cake for Apple. Apple says the design, creation, validation, and deployment of the software will take 6 to 10 Apple employees 2 to 4 weeks. The government calls this a concession. It writes, “Apple is a Fortune 5 corporation with tremendous power and means: it has more than 100,000 full-time-equivalent employees and had an annual income of over $200 billion dollars in fiscal year 2015 — more than the operating budget for California.” Granted there probably is small team of engineers in that pool of 100k who could write the code, it hardly seems like an unreasonable burdensome.
Lastly, there is what to do with the code once the backdoor has been created and the government has mined all the information it needs from Farook’s iPhone. According to Apple, if the new operating system is destroyed, there is a future burden since Apple will need to recreate the code each time a new order is issued. A court is likely to kick this issue down the road. If Apple chooses to keep the code, it will be forced to take on the task of “unfailingly securing” it against disclosure or misappropriation. Apple calls the code “a major prize” for criminals, terrorists, and hackers, and so protecting the code will be difficult. But as the government points out, “Apple has shown it is amply capable of protecting code that could compromise its security.” The iOS source code and Apple’s electronic signature are the “keys to the kingdom.” As the government points out, “If Apple can guard them, it can guard this.”