FBI vs. Apple: Effort to expand federal power won’t go away

There is a fair chance that you’re reading this on a mobile device.

In fact, there is a fair chance that much of what you read, what you watch, who you email, text and call, the contacts you keep, your schedule, the notes you make and the pictures you take are accessed through your mobile phone or tablet.

That is why the debate about Apple and data encryption is important.

Despite the dismissal of the San Bernardino case, FBI access to mobile devices will continue to be an issue. Companies like Apple will continue to improve encryption, while the FBI will continue to demand access.

The outcome of this ongoing debate will affect every user of every mobile device in Texas and across the U.S.

No one wants to enable criminals and terrorists. But this debate was not about Apple’s cooperation with the FBI.

It was, and still is, about radically expanding the power of the federal government and about keeping your personal information — financial, health, even photos and emails — secure from hackers, criminals and cyber terrorists.

In the San Bernardino case, Apple cooperated with investigators, complying with subpoenas and making engineers available. But the FBI wasn’t satisfied, and so it turned to the federal courts.

Creatively employing a federal statute, the All Writs Act, the FBI sought unprecedented judicial relief.

But the AWA isn’t an all-powerful magic wand. It’s very limited in scope.

The AWA merely authorizes courts to issue ancillary orders when they are needed to enforce other orders (in this case a search warrant) and then only so long as those ancillary orders are consistent with existing law.

That is key because another federal statute, the Communications Assistance for Law Enforcement Act, prevents the government from compelling Apple to provide access to information even if that information is encrypted.

Some have argued that the government’s request is consistent with the Communications Assistance for Law Enforcement Act because it only seeks to force Apple to disengage the password on a single iPhone.

But Apple has baked into its operating system (iOS) a feature that deletes a phone’s content after 10 consecutive unsuccessful password tries.

To comply with the government, Apple would have had to design a brand-new iOS with a back door around the iOS imbedded delete command.

This would, in all likelihood, create a security vulnerability in your, my and everyone’s iPhone as well.

The government’s reliance on the AWA was not limited to the San Bernardino case.

They’ve made the same demand of Apple in at least nine other cases, while admitting they will try the same approach with more than 175 additional iPhones.

If ultimately successful in one of the other nine cases, the government will no doubt employ the AWA as standard investigation procedure.

Bottom line: This FBI vs. Apple debate is not over, and it is not about the contents of a single iPhone.

It’s about the Fourth Amendment and the rule of law.

It’s about whether government can force private companies, with no connection to the crime under investigation, to create device-encryption back doors that could affect all its products.

And it’s about whether you and I can know that our personal information stored on our mobile phones, tablets and computers will remain private and secure.

This story was originally published April 13, 2016 at 5:42 PM with the headline "FBI vs. Apple: Effort to expand federal power won’t go away."