On February 16, 2016, Magistrate Judge Sheri Pym of the United States District Court for the Central District of California issued an order compelling tech-giant Apple Inc. to assist law enforcement agents in enabling the search of an encrypted iPhone 5C seized in the course of a search warrant. The iPhone was used by Syed Farook, one of the perpetrators of a terrorist attack that took place in San Bernardino, California, on Dec. 2, 2015. In essence, the order directs Apple to assist law enforcement agents in unlocking the iPhone.
The order requires Apple to provide reasonable technical assistance to law enforcement agents in obtaining access to the iPhone. That reasonable assistance must accomplish three important functions: First, it will bypass or disable the auto-erase function whether or not it has been enabled. Second, it will enable the Federal Bureau of Investigation (FBI) to submit passcodes to the FBI for testing electronically. Third, it will ensure that when the FBI submits passcodes to the iPhone, software will not purposely introduce any additional delay between password attempts beyond what is incurred by Apple hardware.
The order provides that Apple’s reasonable technical assistance may include, but is not limited to, providing the FBI with a signed iPhone software file, recovery bundle, or other software image file (SIF) that can be loaded onto the iPhone. Among other things, the SIF is not to modify the operating system on the actual phone. Once active, the SIF will accomplish the three functions specified in the order. The SIF is to be loaded on the iPhone at either a government facility or an Apple facility.
Judge Pym specifically directs in the order that if Apple determines that it can achieve the three functions using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with the order in that way.
The order also provides that Apple is to advise the government of the reasonable cost of providing this service. Further, although Apple is required to make reasonable assistance to maintain the integrity of the data on the iPhone, it is not required to maintain copies of any user data as a result of the technical assistance and all evidence preservation remains the responsibility of law enforcement agents.
Finally, the order provides that to the extent Apple believes that compliance with the order would be unreasonably burdensome, it may apply to the court for relief within five business days.
While this is by far not the first time Apple has been required to provide information to law enforcement, the company is taking a firm stand against this order. In an unprecedented letter to customers dated February 16, 2016, Apple CEO Tim Cook states the company’s opposition.
To read the order and Apple’s public statement, Lexis Advance subscribers may access it here: 2016-3418 Mealey's Daily News Update 1.
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