The FBI v. Apple Flowchart

In December 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, went on a shooting rampage at Farook’s San Bernardino workplace. The FBI wants access to data stored on Farook’s work-issued iPhone 5c. Farook’s iPhone is password protected. The FBI convinced a court to issue a writ, under the All Writs Act, compelling Apple to create a new operating system that could be downloaded to the phone in order to remove certain protections so that the FBI might “brute force” its way into the locked iPhone by rapidly entering numbers until the correct passcode was discovered.

The case is barely three weeks old, yet already, there have been a flood of legal pleadings, amicus curiae (friend of the court) briefs, letters to the court, not to mention numerous impassioned press releases. Further, there is a 50 page order from a court in New York denying the FBI’s claims against Apple in a legally similar, yet factually distinguishable, case.

I have read every word of the above so you don’t have to. You’re welcome.

The issues involved in this case are numerous and complex.

(The) case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do. ~ Orin Kerr, professor at George Washington University Law School

So very many words have been written already, and so very many issues have been raised in regard to this matter, that I thought it might be helpful to create a “flow chart” that would provide some structure and help us to understand the order in which these many issues are going to be considered and resolved. So let’s get started.

This matter can roughly be divided into five stages:

— Things that look interesting, but that don’t really matter
— Legal
— Legislative (Policy)
— Constitutional
— Technological

Let’s take a brief look at how each stage matters and how the stages will flow, one into the other.

Stage 1: Things That Don’t Really Matter

FLOWCHART: Skip stage 1, proceed directly to stage 2.

There are many, many speculative issues swirling in, out and around this case that are utterly fascinating to talk about…but which, in the long run, won’t matter a hoot. Some examples are:

— There’s nothing of interest on the phone and the FBI knows it. Doesn’t matter.

— The FBI could have gained access to the contents of the phone through a variety of methods that didn’t require Apple’s assistance. Doesn’t matter.

— The FBI was either incompetent or they deliberately changed the iCloud user name on the Phone so that iCloud backups could not be used, thus forcing the current legal case. Doesn’t matter.

— The All Writs Act is old. Doesn’t’ matter. (The Constitution is even older and we still consider it to be relevant.)

— The government could not get what they wanted from the legislature, so they are trying to use the All Writs Act as a vehicle for allowing the courts to grant them the power that the legislature denied them. Doesn’t matter.

I’m sure that I have missed a dozen more interesting, but ultimately unhelpful, issues.

Instead of focusing on what doesn’t matter, it’s best to focus our attention on those issues that matter and matter most.

Stage 2: Legal

All sorts of miscellaneous legal issues have been discussed in the press, but it all comes down to this:

Can the Courts order the relief the FBI is requesting using only the authority conferred under the All Writs Act?


To answer that question, the first thing we need to understand is what the All Writs Act is, what it does and what it doesn’t do. Briefly, the All Writs Act was an act passed by the first congress, after the passing of the constitution, but before even the adoption of first ten amendments, now known collectively as the Bill of Rights. So it’s old, yes, but it also keeps venerable company. (((T)he AWA was enacted the same week that Congress proposed the Fourth Amendment. The Judiciary Act of 1789, which included the AWA, was signed into law by George Washington on Sept. 24, 1789. The next day, on Sept. 25, Congress passed a joint resolution proposing the Bill of Rights that included the Fourth Amendment. In my experience, those who say the AWA is too old to be relevant also tend to believe that the Fourth Amendment should be interpreted expansively in our technological age. But it’s not obvious why one ages like a fine wine while the other ages more like milk. ~ Orin Kerr, professor at George Washington University Law School))

The All Writs Act is designed to allow the courts to use the power they already possess in order to fill in any procedural gaps necessary to implement existing law. The FBI argues that the All Writs Act gives the courts — as it has many, many times before — the power to compel a third-party to assist law enforcement. Apple argues that what the court is demanding — the creation of new software — is not a case of the courts filling in a “gap” between existing legislation, but rather a case of the courts granting themselves a wholly new power authorized neither by the legislature or the constitution.


CALEA is the acronym used to describe the Communications Assistance for Law Enforcement Act. CALEA matters to us for five reasons. First, where the legislature has spoken, the All Writs Act does not apply.

Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. ~ The U.S. Supreme Court, Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985)

Second, CALEA directly addresses the question of encryption. Third, CALEA covers certain telecommunications companies but it specifically excludes companies like Apple. Fourth, the FBI tried, and failed, to extend CALEA to cover companies like Apple and to broaden the scope of the FBI’s control over the encryption made by those companies. Fifth, and finally, under CALEA the government cannot prohibit a company from using encryption, nor can they tell a company how their encryption must be designed.

Apple argues that CALEA is comprehensive and that there are no “gaps” for the All Writs Act to fill. The government argues that CALEA is old, out of date, ((It’s a little ironic that the FBI thinks the 227 year old All Writs Act is perfectly applicable to this matter, but the 22 year old CALEA is not applicable because it’s old and out of date.)) a hodgepodge of rules that do not comprehensively cover the issues at hand, and that the All Writs Act was created to create remedies, like the one currently being requested by the FBI, when no other remedy was available.


Even if CALEA, does not preclude the Courts from Applying The All Writs Act, the FBI still has to show — based upon case law interpreting the proper and appropriate usages for the All Writs Act — that their requests would not be “unreasonably burdensome.” ((United States v. New York Telephone.))

The government argues that Apple is a company valued at well over 200 billion dollars, and that it can easily spare the services of the 6 to 10 engineers for the 4 to 6 weeks that Apple has estimated the demanded task will require.

Apple argues that the short-term costs in terms of reputation, brand, customer loyalty and bottom line profits are far more extensive than the mere cost of losing some of their finest engineering talent for a finite period of time.

Further, Apple argues that the long-term damages are far more costly, and the consequences far more severe, than the FBI is willing to acknowledge. Apple would be creating software that was antithetical to their business purposes; software that hurts their customers by weakening security; software that would turn a part of Apple into a permanent FBI forensic laboratory. Further still, similar demands from the FBI, other government agencies and, eventually other foreign powers, would be virtually endless. Perhaps most importantly, allowing the All Writs Act to be interpreted in the manner desired by the FBI would allow the FBI to endlessly broaden the scope of its demands upon Apple, and others, in the future.

Apple’s last set of claims are all future oriented and only valid if this case does not just involve one phone, one time, in one case, but is a precedent that will be made applicable to all phone makers, and all phones made, going forward. This is why both Apple and the FBI are fighting so bitterly over the question of whether this case is about merely one phone or whether it is about setting a lasting legal precedent.

FLOWCHART: Go to stage 3

Stage 3: Legislative

I want to make one thing very, very clear. When I’m talking about the FBI not being granted the kind of investigative powers that they’re demanding, I’m talking about being unable to get them from the COURTS using the ALL WRITS ACT. That does not, in any way, preclude the FBI from getting what they want by obtaining a new LAW from the LEGISLATIVE Branch. What the Courts can’t or won’t grant to the FBI, the legislature can and may. After the courts have made their decision — and even before the courts have made their decision — the FBI can turn to the Legislature for relief. In fact, the legislative battle is well begun.

— Press releases designed to sway public opinion are issued on a weekly, and sometimes on a daily, basis.
— The Senate has already started congressional hearings on the matter.
— The French legislature has already voted on legislation that affects this matter and which may dramatically and unalterably change the terms of the debate.

FLOWCHART: Go To stage 4

Stage 4: Constitutional

Once Congress has crafted new legislation — and that may occur within months or it may take years — it will have to undergo Constitutional scrutiny. Since the legislation has not even been drafted yet, it is impossible to know what Constitutional challenges such legislation may face or how it will fare in overcoming those constitutional challenges. We can be confident that there will be First Amendment (compelled speech), Fifth Amendment, and perhaps even Thirteenth Amendment (involuntary conscription) issues, but everything else is speculative at this time.

FLOWCHART: Game not over. Go to stage 5

Stage 5: Technological

Stage 5 is the conditional “if-then” statement of our flow chart.

I believe that it is a certainty that Apple is closing the technological loophole (system updates without the phone owner’s knowledge or permission) that the government is attempting to use in the San Bernardino case. It’s only a matter of “when” not “if”. And when it happens, access to future iPhones will be beyond the reach of the All Writs Act and the FBI’s only recourse will be to obtain legislation demanding that Apple not make unbreakable encryption and instead always create a vulnerability in their encryption specifically designed to allow the FBI easy access to the contents of any iPhone, upon demand.

In other words, technology is going to clear the table and reset the game. Almost everything that has gone on before will become moot. ((Lawyers do so love to use the word “moot” and we so seldom get the opportunity to use it in its proper context.))

FLOWCHART: If (when) encryption improves, then go to stage 1.


The parties to this case are in it for the long run. It’s going to be a marathon, not a sprint.

Tomorrow, I will focus strictly on the legal aspects of the current cases and project who the winner may be.

Author’s Note: This article is part 1 of 2. Part 2 was going to dive into the Legal issues involved in this case since the legal issues are the ones that will most likely be decided first and foremost. I had intended to publish part 1 on Saturday and part 2 on Sunday. However, the FBI issued a 30 plus page reply to Apple late on Thursday afternoon and much of the material in the FBI’s pleading covers the very same legal questions that I was addressing in my article. I decided that it wouldn’t make sense to publish an article that didn’t integrate these pleadings into the discussion, so I am delaying my second article until I have had time to do that. When it’s done, the article will focus on:

1) Defining the scope and limitation of the All Writs Act;
2) Whether CALEA precludes the use of the All Writs Act; and
3) Whether the FBI’s request is “burdensome” as defined by the case law defining the All Writs Act.

In addition, I fear that I must also specifically address the question of whether this case is focused on just one phone or whether it is precedent setting. Normally, I would reserve examination of this question for the Constitutional issues, but it is directly relevant to the question of whether or not the FBI’s request is burdensome under the terms of the All Writs Act.

Author’s Query: I am most definitely going to write the second article in this series, but I would like to know whether you want to hear more about FBI v. Apple, or whether you are suffering from legal overload and would prefer that I return my attention to more business centric issues. Let me (gently) know in the comments, below.

Published by

John Kirk

John R. Kirk is a recovering attorney. He has also worked as a financial advisor and a business coach. His love affair with computing started with his purchase of the original Mac in 1985. His primary interest is the field of personal computing (which includes phones, tablets, notebooks and desktops) and his primary focus is on long-term business strategies: What makes a company unique; How do those unique qualities aid or inhibit the success of the company; and why don’t (or can’t) other companies adopt the successful attributes of their competitors?

164 thoughts on “The FBI v. Apple Flowchart”

  1. Thanks for this. While I’m no expert I’ve noticed that much of the discussion around this issue seems to fall into the “does matter matter” category as you’ve described. This case is not simple enough for laymen such as myself to predict because the outcome will likely come down to analysis of a large volume of case law. I’ll keep this URL handy to point to as evidence of this fact.

    1. Thank you for your feedback.

      Not only can’t laymen figure this out, experienced lawyers can’t either. I’ll repeat what professor Kerr said:

      “(The) case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do.”

      I am currently working on one article, which I may have to split into three articles ,on some of the most pressing issues in this case.

      1) Does the CALEA legislation make it inappropriate for the courts to decide this issue under the authority of the All Writs Act?

      2) Is this case about 1 phone or will it set a legal precedent? The answer to this question is crucial because it dramatically affects the next question.

      3) Is the court’s order “burdensome”. The All Writs Act has limitations. I’ll go into those limitations in great detail in my article. If this case involves a precedent, then the burdens on Apple and others are enormous and ongoing. If this is just about one phone, then Apple’s “burden” in this matter is far more limited.

      1. In my view, if Apple were ordered to carry out the FBI’s wishes it would absolutely set a dangerous precedent. Therefore I feel Apple will not be forced to.

  2. I think there are 2 distinct questions, tied up nicely in “does the end justify the means ?”

    A) The end is for the FBI to have access to a phone’s data when they have
    1- a warrant
    2- physical control of the phone
    3- legal possession of the phone
    I’m OK with that. Actually, I support that.

    This is not warrantless mass spying. This is not a remote hack. And this not new: all phones up to 2 years old can be hacked, as can all current active and/or TouchID phones. This is not overwhelmingly new: the FBI already have access to the phone’s last cloud backup, they want to scrape the extra info that’s new since the last backup, or not backed up,at all.

    B) The means, since there is no law directly pertinent to that case and officially no technical way at the FBI to break into a locked + password-protected + password-changed phone (they have no issue achieving their goal if any of these 3 conditions isn’t met), is the AWA which is very open-ended and in its broadest can be understood to empower judges to have individuals and corps do whatever they want.

    That’s an issue, because once Apple get forced into writing that code and setting up that lab, they maybe could be slippery sloped into the “warrantless” and “remote” cases.
    That’ a big issue and makes using the AWA very undesirable. There should be a specific law that defines both law enforcement’s powers and limitations, and makes sure that every IT provider doesn’t turn into one of Big Brother’s eyes everywhere, all the time, for anyone that’s a LOVINT.

    The issue was bound to pop up. It’s good it’s being discussed, hopefully it will even be legislated in a sane way.

    1. “and others”

      Which is a very real possibility for the tech sector overall, and not just device makers.


    2. “since there is no law directly pertinent to that case”

      Well, Apple says CALEA is directly pertinent. The FBI says CALEA has gaps that the All Writs Act can fill. But what the FBI is asking from the All Writs Act is not “filling gaps” in CALEA. It’s asking the court for a remedy that would NEGATE CALEA.

    3. “This is not a huge new backdoor”

      Welllllllll, yeah, it kind of is. The FBI is asking Apple to create a specialized one-time operating system, designed to work on one single phone. No one has ever been asked (or compelled) to do that before.

      1. Indeed, but that’s because it never was necessary before. That’s why I say the backdoor isn’t new: it used to be there, it has been removed, the FBI wants it back.
        Fire exit, concrete truck.

        1. Technically it wasn’t a back door so much as something that wasn’t as strong as it could be getting some re-inforcement.

          What’s interesting is, when you cast it as a case of Apple being uncooperative, and everyone else doing their civic duty (since others haven’t been called out in the same way).

          One wonders though, if it can’t be cast another way: Apple really is concerned with user privacy; and others either aren’t so concerned, or they have a system that makes it extremely unlikely they can ever adequately redress security concerns without practically starting from scratch.

        2. Context matters. When there was a backdoor, everyone knew about it, so people, including companies, were more prudent about what personal and financial data is put in a phone. With the deployment of strong encryption, the industry felt far more comfortable about security and the range of transactions that we can conduct using the smartphone expanded. So reestablishing a backdoor now is not is not a mere return to the old backdoor regime. The landscape has changed. A lot more stuff that can be stolen and eavesdropped is in our phones. Put in a backdoor today and you trigger a massive retrenchment in smartphone functionality. Do we really want the industry to go backwards?

          1. There are still backdoors and leaks everywhere: any unlocked phone, any phone locked w/ biometrics instead of password, any locked phone with a relevant hack, most (all ?) servers and cloud providers have been hacked by now, most apps are unsafe including OSes and browsers… Thinking that because one part of the chain is presumably safe some of the time, safety has been attained is a dangerous delusion.

            If we could rely on technology to enforce laws, car thefts and burglaries would be a thing of the past. Ditto in IT. Tech isn’t a substitute for law enforcement. The reason I’m not a daily victim of crime is because the overwhelming majority of people aren’t criminals, and the very few that are get caught. Not because I can fight/shoot, my home is burglar-proof, my car unstealable.

            re. IT crime, there is a scale issue (one burglar can only burglarize so much, one hacker isn’t physically limited) and a territoriality issue (the burglar has to be there, the hacker, not). Laws have to adapt to new tech, too.

          2. “There are still backdoors and leaks everywhere”

            And yet, here we are, wondering why the FBI needs Apple’s help to even make it feasible to brute force the phone in its possession.

            “Thinking that because one part of the chain is presumably safe some of the time, safety has been attained is a dangerous delusion.”

            Yes, generally, having a lock on the door of your house does no good, unless you actually lock it.

          3. “There are still backdoors and leaks everywhere…”

            Then why the debate and need for help?

          4. Surprised we still have to clarify that:

            1- the FBI says they want data after the last cloud backup and the phone is locked and data that may be local-only. Most data by far is backed-up regularly, duplicated in the cloud, and phones aren’t locked. 99.999% of the cases are way simpler to hack than this one.

            2- Because the FBI want to set a precedent

          5. I believe there hasn’t been any wants of precedent. Just a desirable or undesirable outcome.

            If the statement is “there are still backdoors and leaks everywhere…” the need for assistance is not necessary. Fine if the FBI wants the data, that’s not contested, it’s the method and process that is argued.

          6. These are the most notable data breaches of 2015 in the US: . They total about 150 million, some went on for about a year.

            What’s one more device ? An extra hole in a million-holes sieve ?
            Why is that specific instance of the rightful owner of a device, backed up with a warrant, getting so much more attention than the 150 other, unwilling, unlawful, million ?
            Would the conversation be different if the device did not have an Apple logo ?
            Or more muted ? Nothing much was made of RIM’s case:

          7. “Why is that specific instance of the rightful owner of a device, backed up with a warrant, getting so much more attention than the 150 other, unwilling, unlawful, million ?”

            It’s the right case to escalate. The right type of ‘perp’. The right timing. The right state of mind of citizens. The right timing of political interest.

            But, intentions? No. Just a hope for the right outcome for the FBI. The government exhibited patience for the ducks to line up. Parade the ducks around and let shots be fired, hopefully they all fall in place and future problems solved.

            Calculated? Yes.

            Career ending? Sure, if if goes wrong.
            Career Ending? Sure, if all goes right in the now, but later blows up.

            Either way, it’s potential career suicide.

          8. “Would the conversation be different if the device did not have an Apple logo ?”

            Probably not, but no other conversation is happening. Presumably, the FBI is not looking for help with any other devices.

            You missed Longboard’s point: “Why the debate and need for help (‘conversation’)” …. if “There are still backdoors and leaks everywhere” (including on iPhones)?

            Sounds like, when the built-in security measures on the iPhone are actually enabled (encryption with a password), there are no backdoors or leaks. Hence the “conversation”, with the FBI seeking help.

            Again, it goes without saying: a door with a lock that isn’t locked isn’t much of a deterrent. But, if you want to call that state of remaining unlocked a “backdoor or a leak” on the order of a locked door that does not require assistance to enter, then by all means knock yourself out. No wonder you are confused by the conversation.

          9. I didn’t miss his point, you missed my answer and the background info:

            – aside from iPhones, the top few hacks last year in the US affected 150 million people, and these were not “hacks” by the owner of the device, with a warrant. It seems to me to be a much more pressing issue.

            – for the iPhone, any “live” iPhone can be hacked (iOS is the OS with the most vulnerabilities) , any iPhone “secured” by TouchID can be unlocked w/ a lifted fingerpint (that doesn’t require consent), and any iPhone data backed up on Apple’s cloud (even password-protected) can be subpoenaed and decrypted. (Apple has the backup’s password and will relinquish it, to US authorities and presumably others.

            You’re the one not even understanding the basic setting of the issue.

          10. Not at all. I’m well aware of exactly what you are saying.

            My iPhone is physically vulnerable in someone’s possession if I have not used the passphrase lock and rely on fingerprint alone. Just as someone can mug me at my door and take the key to my house.

            Furthermore, data I store anywhere that is not local and under my direct supervision is also vulnerable (unless I further encrypt it before uploading it).

            Lastly, Apple does in fact cooperate lawfully where and when it can, despite the smearing it is getting.

            What Apple is not prepared to do, and has seemingly never done, to the admiration of its users, is to unlock a user’s locked phone, wherein the user can expect to have private data locally that is (uniquely?) not vulnerable to hacking or handing over (obviously, or there would be no need to help the FBI).

            You continually seem to miss, misunderstand, or dismiss that last point in your incessant sentiments to the effect, “well, what’s one more phone, nothing’s safe anyway”, “who cares, someone can grab your fingerprint anyway”, “what’s the big deal, no one cares about privacy anyway”… Certainly, all these sentiments would be true — if Apple didn’t hold its ground.

          11. You’re wrong, again: Apple was unlocking phones before the 5 or 5s, actually their phones could/can be unlocked by anyone. So “However, what Apple is not prepared to do, and has seemingly never done, to the admiration of its users, is to unlock a user’s locked phone,” is wrong, and (suprise !) your admiration is misplaced.

            What’s so not-special about giving up the backup with its password, but so special about giving up the device’s lock ? If the question is that important to people, why didn’t they sit up when RIM exited Pakistan, or Google exited China (countries where “admirable” Apple is happily doing business), or 150 million people got hacked last year in the US alone ?

            Apple isn’t holding any ground, they don’t have any ground to hold. They hand over backups and keys when asked, do business w/ China, have the 2 worst OSes security-wise… (new today: any app can be local-installed on any iPhone via transplanted security certificates: ).

          12. from your first link: “The company does say, however,
            that in the past, “and under a lawful court order,” it has “extracted
            data from an iPhone” that used operating systems that came before iOS 8, which was released in 2014.”

            Extracting data didn’t required unlocking before, and Apple did it. The only reason for the unlock is to get at the data.

            The FBI is now not even asking for the data, not even asking the unlock, but only for tha ability of an infinite number of tries at unlocking. That’s way less than Apple used to do, and still does for anything below iOS 8.

          13. Obviously you aren’t reading John Kirk’s article and all the comments with any comprehension.

            It isn’t “way less” when the means don’t currently exist.
            It isn’t “way less” when everyone may now line up because they say there is some “contagion” on the phone and a precedent has been set where at the moment it is not possible.

            That’s right, the FBI is not asking for the data, because that avenue currently is not open to them. It’s impossible. And Apple is contesting any call for them to even attempt it. (Yes, that is holding ground in any sense of the term).

            Apple is closing any vulnerability it can find. So that there are not the “backdoors and leaks” everywhere that you proclaim. Of course, to you, all this means the exact opposite of Apple being concerned about user privacy.

          14. Hence my “might makes right” question. Getting data off a phone used to be possible. No Apple have either closed it or made it very costly. I’m not OK with a private company deciding what law enforcement can or can’t do because they’ve got the tech/brute force/weapons/money/influence to back it up.

            Apple like all others is running around trying to plug leaks, and springing new ones constantly (see my link about today’s new exploit). Making a big fuss about the least contagious, most controlled of those leaks is very hypocritical. Plus undercutting their own ‘we’ll never break them !” locks by allowing biometric bypass, on top of being the least secure OS around is actually funny.

          15. You are fussing and hypocritical. If there are real leaks and vulnerabilities, the FBI wouldn’t need Apple’s help.

            Obviously you aren’t OK with Apple “deciding what law enforcement can’t do”, that’s your choice. Personally, I’d rather the govt deal properly with guns. Really, it’s “fetishising the phone” for law enforcement to think they can’t solve or prevent crimes without being able to do what they want and possibly obtain evidence they never had in the past.

            Others are glad Apple is doing this. Apple has the money and tech to do this, because they have made choices that make that possible. The choices are aligned to a lot of user’s interests. Google uses its money and might to do what is not in my interest.

            As far as what is “right”: until the debate is concluded and democratic/referendum-driven legislation says otherwise, I will go with Ben Franklin’s “Those who give up their liberty for more security neither deserve liberty nor security,” before going with a fickle govt that forgot that only last year it called for China not to do what it is now doing.

          16. “and possibly obtain evidence they never had in the past.” Wrong, that’s the contrary: evidence they *always* had in the past.

            Being grandiloquent vs FBI is fine. What would be finer is being efficient vs the hundreds of millions of hacks that are done 1- remotely 2- not by the owner 3- w/o a warrant 4- for nefarious purposes.

            I think the tech kommentariat is utterly picking the wrong battle to get all excited about, and because Apple’s in it. Nobody’s taking Apple to task for the below chart, which is much much worse:


          17. When I say in the past, I mean before 2007 or the invention of smartphones.

            And when evidence from other phones, tapped for the better part of 100 years, is sought/recorded/analysed, the content may or may not be encrypted, garbled, and or spoken in a code known only to the parties speaking.

            So, in that way, I say usable evidence is “possibly” obtainable: it’s possible, as always, that “evidence” obtained is unusable; it’s never a done deal. Law enforcement, as always, has to deal with that. Usable evidence is not their *right*, they have to work for it.


          19. As John Kirk outlined in the article, it seems that it is CALEA that already says specifically “what law enforcement can or can’t do”. It’s the specific law trumping the more general one that the FBI prefers.

            It seems it was a hard-fought deal. And now the FBI doesn’t like it. Here is an article describing the situation simply:


    4. “the FBI already have access to the phone’s last cloud backup, they want to scrape the extra info that’s new since the last backup, or not backed up at all.”

      Except, again, the FBI gets what they get with the iCloud backup. If the back up is encrypted, it’s encrypted. And apparently you need the phone unlocked to un-encrypt it.

      You seem to act like Apple is playing two sides, and only paying lip-service to privacy for PR reasons. They are simply cooperating with law enforcement as far as they can, and at the same time they do provide the possibility for a user’s data to remain private.

        1. My understanding, is that, at least for later iPhones, hardware encryption is happening on the phone, not after the backup reaches the server. And that one of the keys for that encryption is provided by the device and not known to Apple.

          1. In order to provide users the flexibility of moving backups from one device to another (say in the event of a new phone or iDevice), the iCloud backup cannot use any one specific device’s hardware key.

            iCloud backups are encrypted in transit, and they are stored using Apple’s encryption key and released with proper login credentials.

      1. Possibly? The events and rhetoric, which are becoming increasingly fearless and contemptible, point to their real goal, that is total power, where non compliance is criminal by definition. The so called terrorism case, barely different from the rantings of any of your mass murderers, is the volatile, easy to point at hook to distract the masses from the real purpose of this new push to overrule the pesky courts.
        Why do you think there there is an endless supply of television and movies depicting selfless and brilliant police/security work saving us from evil? Because it’s true?

  3. Please do write part 2.

    “The government argues that Apple is a company valued at well over 200
    billion dollars, and that it can easily spare the services of the 6 to
    10 engineers for the 4 to 6 weeks that Apple has estimated the demanded
    task will require.”

    I am a legal ignoramus, but isn’t it so that “burdensome,” as defined by courts, normally has little do do with cost or affordability?

    1. Normally, what the court is doing is, for example, asking a store owner to provide the police with his security footage. Not much of a burden.

      Here, Apple has estimated it’s initial costs as 6 to 10 engineers working 4 to 6 weeks.

      However, the list of burdens grows very, very long if this case is indeed about more than one phone. My article will go into this in great detail. Just a couple of the issues involved:

      — Apple is not being asked to produce something that exists, they’re being asked to create something that doesn’t exist. So far as I know, this has never been authorized before under the All Writs Act.

      — Apple is being asked to take an action that is antithetical to their business. They’re being asked to set up a separate division within their company to hack their users and to weaken the encryption being created by another part of the company. Burdensome? Oh yeah.

      — There are tremendous policy issues here too. But none of them come into play UNLESS this case involves more than 1 phone.

      I’m working on the article as we speak. It’s going to be LOOOOOOONG and detailed. But hopefully, it will be enlightening as well.

      1. @FalKirk:disqus I am looking forward to your LOOOOOONG and detailed article as I am sure it will be interesting, enlightening and informative.

      2. I would be okay if, like eminent domain, Apple were reimbursed by the government for time/effort/expertise. Of course, it’s not what I think, but rather what the law says.

        “Apple is being asked to take an action that is antithetical to their business.”

        Well boo hoo. This whole new OS overstated nonsense is nothing more than a firmware patch, something only Apple is uniquely capable of providing. Even a non lawyer like me can tell you that these are all under FCC license. Licenses have terms, they are not rights.

        1. “Well boo hoo. This whole new OS overstated nonsense is nothing more than a firmware patch.”

          Klahnanas, I knew you’d blow this off as being non-burdensome. You didn’t disappoint.

          Hmm. I suspect I will be devoting between 1,500 hundred to 2,000 words to this exact question. We’ll talk then about whether the FBI’s request is going to be burdensome or not.

          1. Your anticipation of my reaction was correct, perhaps for the wrong reasons. I’ve been careful not to make this an “Apple” issue. It really isn’t, and I’ve stayed away from opining on what Apple’s motives may be.

            Where you might be wrong in your anticipation would be my motives. I would have said the exact same thing, over the same BS, regardless of which company. I did agree that it can become too burdensome, and that such help should be reimbursed as well.

          2. What kind of reimbursement would suffice for ordering a company to undo or negate its:

            overall product strategy and roadmap
            carefully considered hiring decisions
            countless man-hours of hardware design and software coding
            security white papers
            million+ dollar marketing campaigns
            customer goodwill
            brand identity

            You think this comes down to simple reimbursement?

          3. If they are going to call the removal or isolation of a counter “a whole new operating system”, they are technically correct. Considering that might involve one to ten lines of code to create this “whole new operating system” is what is BS.

            Laws change, situations change, society is not bound to preserve their product strategy or roadmap. That is very much Apple’s problem.

            Society has a much larger problem, that is how to properly maintain the 4th Amendment without throwing away reasonable searches and seizures.

          4. “Society has a much larger problem, that is how to properly maintain the 4th Amendment without throwing away reasonable searches and seizures.”

            Which seems to be precisely what the FBI/DOJ are obscuring.

          5. Apart from the issues of precedence and whether this is about the one phone, or not; and other items in the press campaign conducted by the govt, you mean? (And these are mentioned in just this article; other articles raise other concerns).

          6. And your attempt to minimize the impact on Apple (and society) is BS.

            This phone, and any future phone, can be seized at any time. The expectation that its contents must be readily viewable is nonsense.

            Why are paper shredders and open flame not outlawed? As others have pointed out, in the old days (when people didn’t carry around repositories containing details of every bit of their lives) the FBI still managed to solve crimes.

            Your argument assumes that the FBI is seeking to maintain and protect access to something they’ve never had before.

            As far as I’m concerned, the demand that law enforcement automatically be granted access to contents on a phone is tantamount to repealing the RIGHT to remain silent and not self-incriminate.

          7. Who in the world said anything about automatic? I sure didn’t.

            Your paper shredder example is a very good one. Conversely I also remember a certain accounting firm getting in a lot of trouble for using them.

            Warranted searches are, and should be, legal.

          8. A warrant is like a birthday card. Available anywhere anytime. Since the hurdles to get a warrant are so very very low, access to the phone is all but automatic.

          9. More BS. To properly get a warrant (pre-BS Patriot Act) you needed to show just cause for the search to a judge. That judge bore huge responsibility for issuing that warrant.

            What do you suggest, barring all searches?

          10. No. Far from BS. You only need to show “probable cause” for a search warrant, and only the most incompetent law enforcement official would ever fail to meet that extremely low threshold. Thus, it is all but automatic.

            You ask for my suggestion: I suggest that the contents of a smartphone should be considered off limits to search warrants — like medical records, priest confessions, journalistic sources and notes, lawyer/client discussions, spousal discussions, and the contents of a diplomatic pouch.

            The sheer amount of data available for easy search on a phone goes way beyond the scope of any warrant. Therefore, because the possibility for abuse is so high, no search warrants for ‘phone content’ should ever be issued.

            In a sane world, this would be obvious to everyone.

          11. Probable cause is reasonable. The search presumably is also supervised, and the findings also presumably treated with decorum. Of course, there are bad actors in law enforcement. They should be punished when they violate their trust.

            If I can be cavity searched to the point where the examiner’s elbow disappears, I don’t think a smartphone is crossing the line. I’m truly puzzled by this. There are so many more intimate and extensive searches, such as PCs, I just don’t see the smartphone deserving of special treatment.

            Medical records are not 100% protected, journalists have been jailed for non-disclosure of source, confessions protection is more for the priest than the sinner, spousal discussions are 5th amendment protected, diplomatic pouches are protected by treaty.

          12. I’m shocked you’re not. I think we need to re-evaluate all searches, not just phones.

        2. By the way, Apple will undoubtably be reimbursed, at least for short term costs, like labor, space and equipment.

          The subtle — and more serious — costs cannot and will not be reimbursed.

          1. “airwaves are licensed, not a right.”
            So, is software, even when it is on your own phone.

            And why the jump from firmware to airwaves? I am not sure of the point you are trying to make.

          2. That the law can indeed set terms on the use of the airwaves. Which can include backdoors on devices, cooperation with authorities, etc.

          3. oh, there is no doubt the airwaves *belong* to the govt — they’ve been monitoring them for best part of a century. And everyone knows our access to the airwaves isn’t really a right, since we have all “suffered” no access at times, or been subject to all sorts of obstacles at the best of times. It’s no more a “right” than good roads to drive on.

            The question is, whether you have to make it easy for the govt to know exactly what you are saying, when you use the airwaves.

            John Kirk describes the current legislation and outlines what the FBI is trying to do in order to get itself new powers. John put five points under CALEA in his article. This is just the fifth:
            “Fifth, and finally, under CALEA the government cannot prohibit a company from using encryption, nor can they tell a company how their encryption must be designed.”

          4. No sir, they belong to the citizens of the US and are administered, on their behalf, by their duly elected government or it’s designate. In this case, among other’s there’s the FCC, FTC, etc.

            I do not advocate mass surveillance, nor do I make an exception for a phone. If I can be searched boarding an airplane, that’s bad enough, my phone is not logically exempt.

            Maybe CALEA does clarify this particular case. There’s nothing stopping the Congress from passing laws requiring a means of access under democratically acceptable terms. This matter is so above and beyond Apple that it’s not even worth mentioning it other than as a case study.

          5. I believe the Radio act of 1927 claims no public ownership, thus government does not own it, the people do not own it; it is like wind, sun light, rain… However, the government will help manage it.

            Congress deleted a House passed ownership statement. It’s a myth that people believe airwaves belong to the people. The government has said no one owns it.

            The FCC manages it due to a “back-door” slip due to regulations created. And, people didn’t throw up a fight. The thought was, “well at least someone will keep it from becoming a chaotic mess”. And, as such, the FCC became big brother and enacted morals and became the vice squad.

            In any event, the people do have recourse, they can switch the dial, knob, whatever it is you like and tune out the signal.

          6. Because they can and you cannot… You have the right to form a dissenting organization.

      3. Thanks. So burdensome is more nuanced than mere time/money.

        Two other things:

        A, France – obviously France’s new law (has it fully passed yet or is it still waiting for approval from whatever they use as an upper chamber?) is going to be a long legal slog all its own, in french courts and EU courts. And France is just the first country to pass legislation that Apple will have to fight. Remember the endless apple vs samsung battles in various courts in various countries? This will probably be even more drawn out.

        B, Re the irrelevancies you list in stage 1. Not relevant in legal terms from an impartial POV, but judges are fallible human beings, so all that posturing and editorializing is at least partly for the people who will make legal decisions in the case, as well as for the public/the legislators.

        1. Yes, Judges are fallible, but I’ll say this. Before a case can get to the Supreme Court, an awful lot of very smart people will be examining the various issues from every angle possible. I don’t always agree with the decision of the Supreme Court, but even the decisions I hate are meticulously researched and reasoned.

  4. I’m definitely suffering from legal overload about FBI v. Apple, but only because the majority of articles already written lack the clarity and insight that you provide. I’m very much looking forward to reading more about this from you.

    1. Wow. That is very kind of you to say.

      You may well come to regret those kind words when you see the stream of articles that are about to come down the pike. 🙂

  5. “Press releases designed to sway public opinion are issued on a weekly, and sometimes on a daily, basis.”

    This is the main reason why the things you say don’t matter in a legal sense still matter otherwise. I know this was not the focus of your article, but there is some massive mischaracterizing going on. The way the FBI/DOJ present their public arguments is that it is a forgone conclusion that there is evidence on the phone to put the bad people away and that Apple has been uncooperative and have blocked the FBI in all areas with regard to the phone’s data. Neither of which has been the case.


    1. Yes, I think the legal issues are fascinating, but ultimately, Congress may well override the court’s decision with legislation. The PR battle for the hearts and minds of the pubic and congress is probably the battle that matters most.

      1. This sound like a Supreme Court matter, where conflicting lower courts and the politics of an election cycle cloud the issue. Part 2 is anticipated.

  6. John, you wrote:

    “The government could not get what they wanted from the legislature, so they are trying to use the All Writs Act as a vehicle for allowing the courts to grant them the power that the legislature denied them. Doesn’t matter.”

    But in the New York case that also relies on the AWA, the judge explicitly used that argument to deny the governments motion. The judge wrote:

    “In short, whatever else the AWA’s ‘usages and principles’ clause may be intended to accomplish, it cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected.”

    (p. 26, 2/19/16 ruling, copy easily found on eff site under “Apple All Writs Act (NY)” section.) The analysis is very interesting. The fact that the All Writs Act was used is actually very pertinent to the case.

    1. What I was trying to say was that the motivations of the FBI don’t matter.

      What you’re pointing to is the fact that the All Writs Act cannot speak when the legislature already has. I just finished working on the “CALEA” part of my next article (articles?) and I can tell you that the FBI is pushing back on this hard. Essentially, they’re claiming that 1) CALEA is not comprehensive and it’s perfectly fine for the Court’s to fill in the gaps with appropriate remedies; and 2) CALEA doesn’t apply because CALEA “does not destroy any existing authority—or even speak to courts’ power at all.”

      There is a lot to unpack in these arguments and I can’t wait to finish my article and share my thoughts and observations with you all.

      1. First, Please do write your 2nd article.

        Next, you wrote “Fifth, and finally, under CALEA the government cannot prohibit a company from using encryption, nor can they tell a company how their encryption must be designed.”

        Does this portion of CALEA only restrict the Executive Branch (DoJ), or does it also restrict the Judicial Branch via the AWA route?

        1. “Does this portion of CALEA only restrict the Executive Branch (DoJ), or does it also restrict the Judicial Branch via the AWA route?”

          Good question. CALEA only applies to the executive branch. There really was no need to say, “The courts can’t order a company to decrypt it’s own code”…until now.

          What’s supposed to be happening is that congress passes a law and the courts use the all writs act to supplement it if failure to act would allow the legislation to fail. What the FBI is proposing is that the courts can order this remedy (and what other remedies) even if the legislature doesn’t authorize and and, in this case even if the legislature forbade it!

          A good rhetorical question to ask is, “If the courts had this power all along, why did the FBI even bother going to congress in order to obtain the CALEA legislation?”

  7. John, I’m very glad to see your analysis of FBI v. Apple, since (1) this is a difficult case, (2) you’ve proven your dissection capability in the past, and (3) you’re a former attorney (recovering you say, but it doesn’t seem like you’ve lost your skills!).

    1. Thank you for your encouragement, Observer. It’s much appreciated.

      It’s probably true that I haven’t lost my legal skills, but that’s only because they were never very good to begin with. 🙂

  8. Can’t see the Feds prevailing, if they do, we’re going down in something akin to extra thick sewage laden quicksand…Super great article, thanks

    1. “Can’t see the Feds prevailing”

      You know, let me say something about that. I went into my research not knowing who had the advantage. The more I researched, the more certain I became the FBI wouldn’t be able to get by the twin stumbling blocks of CALEA and “burdensome”.

      Then…the more I researched, the less certain I became. There are some very subtle and nuanced issues in the case. The more I learn, the less certain I become.

      “Believe those who are seeking the truth. Doubt those who find it.” ~ Andre Gide

      1. That’s piqued my worry a bit…glad to rely on you to help with the mulling over…we’ll all be staying tuned…hopefully, somehow in the end the legal process will render a ruling that’s reasonable, sensible & fair…can’t help but think that being more exposed in an already porous world could yield much benefit…I look at it as almost all risk (should the FBI get it’s way)

      1. I’m an optimist…I believe that wisdom (& addressing the problem in a reasonable way) will somehow, in the end prevail…but only after necessary trials & tribulations

        1. I was an optimist too, then Bush’s Iraqi adventure and perpetual detention without due process and extraordinary rendition and waterboarding and the Patriot Act happened and I have completely lost any confidence in the wisdom of the crowd and the people who endeavor to lead them. And now we have The Donald.

          1. I get what you’re saying…It’s not at all implausible that the political climate could change dramatically, especially if we suffer another (God forbid) 911 scale attack & someone such as Trump gets into the Oval Office

  9. John, you say “The FBI could have gained access to the contents of the phone through a variety of methods that didn’t require Apple’s assistance. Doesn’t matter.”

    Wow. It looks to me like it matters greatly. How can the FBI order Apple to do something they can do themselves? (1) Why would the FBI issue such an order? (2) There is no need for such an order, so to me, insisting on it makes no sense at all!

    1. This is, in my opinion, one of the great red herrings leading us astray. From an equitable point of view your can (and I have) argued that the FBI should not be able to pursue this case if: 1) they self-sabatouged the phone; 2) They can go to the NSA (or in-house) and crack the phone themselves. Apple has brought up both of these issues in pleadings.

      However, I can’t see a court throwing this case out on that kind of technical detail. The courts don’t necessarily want to be forced into making sweeping constitutional pronouncements, but they also know that this is not a novelty, that this issue is going to come up again and again, and they going to resolve the legal matters in this case as best they can.

      Of course, that’s just my opinion.

    1. My glib answer is “no”, but I’m not sure that I am following your question. Can you clarify or elaborate?

      1. You mentioned “The government argues that CALEA is old, out of date,” so FBI invoked AWA. I am asking is there any court precedent that laws of land are selectively used and succeeded?

        1. Well, the laws aren’t selectively used. But the department of justice, in its most recent brief, pointed to a couple of instances where the courts have found that there wasn’t a compressive legislative scheme that prohibited the courts from using the All Writs Act. The department of justice argues that this should hold for CALEA as well.

  10. First, thank you for “[reading] every word of the above so [ I ] don’t have to.” Seriously.

    Please do continue with the Apple/FBI analysis. It’s very refreshing to see you cut through all the crap. Best,


    1. Thank you for your encouragement, Kobi.

      I am not kidding when I tell you that my eyes are blood-shot (and I don’t drink). Last night I read all the major cases that the FBI cited in their brief and then I went back and read some of the dissents in some of the frequently mentioned cases. The dissents in The New York Telephone Case along with the dissent in Mountain States, were particularly interesting.

      Was it work? You bet. Would I have done it if I didn’t love doing it. No way.

      1. I bet your eyes are bloodshot because of the gathering nightmare of dark forces. Thanks for keeping it together to help those with less patience and insight understand the brewing shitstorm.

  11. I heard an interesting report on NPR talking about how this is easily accomplished by the NSA, but they can’t share their tech with the FBI because it would end up in court, which is where the NSA does not want it to be. I still have a hard time believing the FBI can’t do this without Apple’s help.


    1. Probably because that’s not their actual goal. Nothing about this particular case is consistent and they don’t seem to care. That suggest anything to you?

  12. Glad to see your take on the “burdensome” aspect that I thought you’d minimized earlier. But I want to push harder still. Damage to users’ trust (Apple’s reputation) could be immediate with the single phone unlock. You and I can both easily see what the world would: that Apple rolling over for this phone raises the chance that it would be forced to for another. (The same is of course true for the recent action against WhatsApp.)

    I will also note that in the “NY case,” Judge Orenstein explicitly addressed how Congress failed to extend CALEA to Apple-type situations, so the AWA’s applicability is fatally harmed. In that sense, the FBI’s end-run effort is called out as such and means that the FBI has a higher burden.

    Occasionally I hope that a judge will refuse a filing for the inflammatory insinuations made by DoJ, reprimanding them for the BS and giving them 24 hours to re-file. Maybe some lifetime, sigh.

    Finally, a lot of what you correctly ID as irrelevant is important in the court of public opinion. This will impact Congress directly and judges indirectly. (“The Supreme Court reads the newspapers” still.) I personally see some opinions disseminated that look like DoJ disinformation campaigns, and that should be strongly condemned for THEIR corrosive effect on democracy.

    1. “a lot of what you correctly ID as irrelevant actually IS important in the court of public opinion”

      Absolutely true, and since I think this matter may be decided in the legislature I should have made that more clear. I think, since I’ve buried myself in the legal aspects of the case that I was thinking of things that would be irrelevant to the courts.

    2. “Glad to see your take on the “burdensome” aspect that I thought you’d minimized earlier”

      I believe CALEA is the first hurdle the FBI will have to overcome. I believe burdensome is just as big a hurdle.

      The potential burdens that Apple will incur can be minimized to a couple of hours of work by a couple of engineers or maximized to draconian consequences of a most dire nature. That’s why I’ve devoting a separate article to the topic. People simply do not understand the potential ramifications of the FBI forcing Apple to create code to defeat their very own encryption.

      1. People seem to be obsessed with details, while the FBi and executive branch are just using them as a distraction. This is exactly the kind of outcome I’ve been expecting since the “War on Terror” was adopted as the flag bearer to crush citizens rights. Unfortunately it won’t just be restricted to the U.S. Why didn’t they call it “War on Terrorism”? It’s only one more little syllable and War on Commun makes as little sense.
        This is power like the Nazis (and Stalin of course) could only dream of (and probably did).

  13. The FBI is asserting that the All Writs Act authorizes a court to issue any writ to further lawful investigations by the FBI unless expressly forbidden by an Act of Congress. This seems extremely dangerous reasoning. Federal law was limited by the Founding Fathers to only grant power to the Federal government when the will of the people was expressed by an Act of Congress, signed by the President, and consistent with the limits imposed by the Constitution. Now the FBI believes its power is only limited not by what Congress has granted, but only by what Congress has expressly forbidden. Such power would only be constrained by the imagination of the FBI (or any other law enforcement agency) so long as a judge could be persuaded to issue the writ. This is how this case arrives at the point of the FBI believing it is entitled to compel anyone to do anything, even against their will, to assist the FBI’s activities so long as the Fifth Amendment is not violated. To me this is the most important case to be decided since Gideon v. Wainwright (right to legal counsel). Please do another article as your background as an attorney is extemely helpful.

    1. Yes, this is one of the arguments that Apple is making and it was one of the pillars that Judge Ornstein leaned upon when denying a similar request by the FBI similar in a New York case.

      The argument goes like this. The All Writs Act was designed to fill in gaps. But the FBI is not asking the court to fill in gaps in existing legislation, they’re asking the courts to grant them powers DESPITE existing legislation; powers that actually defeat the purpose of existing legislation.

      The Department Of Justice says there’s no need to worry because the court’s have a long tradition of using judicial restraint. But whereas before, the courts were guided by trying to fill gaps between existing legislative “peaks”, under the FBI’s interpretation of the All Writs Act, there are virtually not guidelines and, in a worst case scenario, the courts become an independent super legislature. Judge Ornstein said as much:

      “Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.”

      1. I have strong trust of the judicial system to restrain or prevent governmental overreach. However, the exercise of police power was one of the primary threats to liberty with which the Founding Fathers concerned themselves. Hence fully half of the first Ten Amendments address limits on police power. The greatest threat to a free society is not from enemies outside its borders, but rather it is the abuse of police power by the people’s own government. Compelling one to act against one’s will to aid police power seems to me essential to a police state. While the debate surrounding encryption and privacy is important, I am frustrated that the far greater issue eludes most people. if Apple loses, what lies next? Will the very act of not complying with an FBI request become criminal itself?

    2. That’s exactly what we’re racing towards, and not just in the U.S. Every tinpot sociopath and crime oligarch is salivating at the possibilities, but this will lead us straight to a new dark age that is likely to be unrecoverable.

  14. Thank you very much for by far the very best discussion on this subject that I have encountered. You make it easy for a person who is not familiar with US law to understand, whilst structuring the argument in a way that gives me confidence that all relevant bases have been covered. This is great.

    It’s also great that good articles attract wonderful comments.

    1. Wow, Naofumi, your comment is gracious on so many levels. Thank you so very much for that.

      “It’s also great that good articles attract wonderful comments.”

      Let me just join with you in saying that the commentators at Techpinions are some of the very best there are on the web.

  15. This is unbelievably serious and heads can’t simply be buried in the sand. The FBi (ironically autocorrected to fib) is the spearhead of the feared dystopian police state and it appears the U.S. Government is pressuring other governments to preempt US legislation by dropping their own first, to rapidly escalate pressure on Apple initially.
    For the Apple haters out there, please realise this is just the start. You will all be attacked and monitored, but not just by the so called government.

    1. This is so beyond Apple, that your ‘Apple Haters’ comment is just unnecessary. Do I go around saying the only reason Apple Lovers care is because it involves Apple?

      This is too important, and you say so yourself, to let our brand loyalty get involved in any way. It’s just a case study.

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