The one-off use the FBI promised for the iPhone it wants Apple to help hack already looks to be falling apart because the Department of Justice is working to get similar orders for about 12 more cases. Like the iPhone in the San Bernardino shooting, the DOJ is using the All Writs Act in an effort to force Apple to bypass the passcode security features built into iOS.
More iPhone unlocking cases are lining up
Sources speaking with the Wall Street Journal said the DOJ is trying to get at potential evidence on iPhones with passcode locks in place, much as it is doing in the San Bernardino case. These 12 other cases, however, don't involve terrorist acts, and are essentially on hold while the fight over whether or not Apple should create a less secure version of iOS for the FBI plays out.
The current case involves Syed Rizwan Farook and his wife Tashfeen Malik who opened fire on their San Bernardino County Department of Public Health coworkers on December 2, 2015. They killed 14 people and seriously injured 22 more before fleeing and ultimately getting killed in a shootout with law enforcement.
Mr. Farook's work-issued iPhone was recovered, but FBI agents couldn't look at its contents because it was protected with a passcode. Apple's built-in security measures will destroy the data on the device after 10 failed login attempts, so the FBI obtained a court order compelling Apple to create a version of iOS that removes the 10 login attempt limit along with the forced delays between trying different passcodes, and also requires the company to create a way for the FBI to automate passcode entry.
Apple has resisted the court order saying the government is overstepping its bounds, that creating the weaker iOS version would set a dangerous precedent, and that it would lead to similar orders.
"The government suggests this tool could only be used once, on one phone. But that's simply not true," said Apple CEO Tim Cook. "Once created, the technique could be used over and over again, on any number of devices."
FBI Director James Comey said that's not true, and this fight is all about a single iPhone used in a terrorist act. The court order does say Apple can destroy the software once the FBI's case wraps up, and Mr. Comey stated in an open letter, "The San Bernardino litigation isn't about trying to set a precedent or send any kind of message."
With news of these additional cases the DOJ has lined up, however, it's looking like Mr. Comey's statement is somewhat disingenuous. As if that isn't enough to tear down the one-off argument the FBI asserted, Manhattan's district attorney said he plans to force Apple to unlock iPhones should the ruling stand.
Apple has helped law enforcement in the past, and currently has a team available to work with law enforcement at any time. The team helps agencies recover unencrypted data when presented with search warrants, but doesn't have any way to bypass the passcode on iOS devices.
The American Civil Liberties Union and Electronic Frontier Foundation condemned the FBI's court order saying it's unconstitutional and an "unlawful move by the government." Facebook, Google, Twitter, and other tech companies have come to Apple's defense, too.
Apple vowed to fight the court order and retained Theodore Olson and Theodore Boutrous, both attorneys with a strong history defending freedom of speech cases. Apple is digging in its heels for a big fight and will likely use the First Amendment's free speech clause along with the Fourth Amendment's protection from unreasonable search and seizure as part of its defense.
Apple hasn't even hit its February 26th deadline to respond to the court order—an order that says it's a one-off deal—and already similar order requests are lining up. Mr. Cook and Apple are right to fight this order, and their industry colleagues should be very concerned if it stands.