What would a Trump Election mean to Apple?

The FBI has been in a wrestling match with Apple, Inc. over the encryption installed on their iPhone devices, which makes them extremely difficult to access without permission. On December 2, 2015, Syed Farook and his wife, Tashfeen Malik, went on a shooting rampage that killed 14 people and injured 21 others. Authorities eventually tracked down the couple, who died in a shootout with police officers. Police recovered Farook’s locked iPhone 5c, which is owned by the San Bernardino Department of Public Health, inside his vehicle at the shooting location.

Syed Farook’s vehicle where i-Phone was located.

Authorities have attempted to track the movements of Farook and Malik after the shooting, but there is still an eighteen minute gap after the shooting, before the gun battle with the Police Department. Some would wonder why it is important to have law enforcement get into the iPhone to reveal the data and information contained within. It can reasonably be assumed that they did not manage this attack without support from other organizations and individuals. Authorities are aware of the participation of a third individual, Enrique Marquez, who had planned to conduct other terror attacks with Farook. Law enforcement became aware of Marquez’ involvement through his own phone call to 9–1–1 on the night of the shooting, during which he volunteered information on his past involvements with Farook. There may be additional persons involved that have not had the pang of their conscience force a confession. There may also be information on additional pending terrorist attacks.

Brussels terrorist attack aftermath. What if Farook’s phone had information that could have prevented this attack?

How does law enforcement get into phones? Most LE agencies will not enter a phone to review its contents without a signed court order. The judicial review is not an easy process, and many judges have rejected requests when they don’t believe that it is an appropriate use of a court order. Law enforcement must demonstrate to the Judge that there is a connection between a serious criminal act and the contents in the phone. The iPhone itself is a uniquely challenging device in that the information effectively self-destructs after ten failed attempts to enter the passcode. There are ten thousand possible combinations based on the 4 digit code used for the I-Phone, so there is a great possibility of unintentionally deleting the contents after failed attempts.

The Government has historically relied on court orders that are based on the All-Writs Act, which was signed into law in 1789. The All-Writs Act is a catchall statute empowering courts to issue orders that are necessary to carry out other governmental legal functions. What you might ask is the connection between a 200 plus year old law and the current scenario. The government contends by using this statute that the qualifications have been met in order for the All Writs Act to be applicable as a way to compel Apple to create this software. These include:

• The All Writs Act is only applicable if no statute, law or rule is on the books to deal with the specific issue at hand.
• The business in question (Apple) has some connection to the investigation.
• There are extraordinary circumstances that justify the use of the All Writs Act.
• The All Writs Act only applies if compliance is not an unreasonable burden.

Apple’s response to the court order was that they did not have the technology to access the phone (and its information) without the password. They stated that Apple engineers were effectively being conscripted by the Government to build a hacking application for the FBI. They argued that the court order was akin to ordering a locksmith to crack a safe, or a linguist to make sense of a suspect’s diary, against their will. Instead of being asked to hand over its own information, Apple was being ordered to hack into someone else’s property, someone whose only connection to the company was that they owned a phone that Apple had once produced. Apple believes that the All-Writs Law should not apply in this case as compliance with it would be an unreasonable burden, and refused to comply with it.

This battle was put on hold when the U.S. Attorney’s Office dropped its demand for the courts to compel Apple to hack the phone. Apparently, FBI has found another source that is able to enter Farook’s iPhone without Apple’s cooperation. This fight hasn’t been decided, just postponed for the next iPhone that the Government needs to be hacked.

So what happens in this scenario if Trump is elected? The Donald is certainly considered a supporter of law enforcement’s arguments to force Apple to assist the Government’s case. Therefore, we can imagine his likely push for legislation to compel mobile phone manufacturers in the United States to program “back doors” into their products to be accessed when ordered by the courts. Whether Congress would pass such a bill, especially in light of the negative attention that Apple has generated with this case, remains to be seen. Apple, Inc. has forced a comparison between the United States and totalitarian governments that may not sit well with present and future law makers. So stay tuned, the Government’s battle with Apple, and its corporate peers, continues for another day.