Skip to main content

The FBI’s attack on Apple could force Congress to rule on encryption

The FBI’s attack on Apple could force Congress to rule on encryption

Share this story

Photo by Andrew Burton/Getty Images

A federal court is ordering Apple to break the security of its products by building a backdoor into one of its devices — an iPhone 5C belonging to one of the San Bernardino shooters. The controversial order, which was issued yesterday, marks the start of a brewing legal fight that could culminate in Congressional action on encryption. Until Congress tackles the issue head on, though, the question at hand is how this order is justified and whether it will hold up during the appeals process.

The FBI successfully got the order issued because of a law passed more than 200 years ago. The All Writs Act of 1789 allows federal courts to issue writs, or court orders, that require third parties to assist in the execution of another court order, like a search warrant. It’s only applied as a last resort. It’s previously been used to compel a telephone company to help install a pen register, for example.

the order was issued because of a law passed more than 200 years ago

While the AWA has been referred to in the past, this order drastically widens its scope. It’s one thing to require a company to assist in carrying out a search warrant, but in this case, the FBI is requiring Apple to build entirely new code to access the device in question, and part of that code would rely on Apple using its private key to authenticate it. This essentially amounts to the FBI requiring Apple to lie about its security checks, Nate Cardozo, staff attorney at the Electronic Frontier Foundation, told The Verge.

"No court has approved an order or law that would compel a company to do something or speak in a way that wasn't completely true," he said. "In this case, Apple is being compelled to create computer code that is false in a very meaningful way."

This is where Apple’s argument comes in. A specific exception made in the AWA is that it cannot require third parties to assist in ways that would be "unreasonably burdensome." By following this order, Apple could argue, it would place a burden on its reputation. No one will ever trust the security of their devices again, Cardozo said. "It’s an extraordinary burden — not just one of cost and time, but of a loss of good will in Apple."

The AWA can't require third parties to assist in an unreasonably burdensome way

But that argument could crumble, Susan Hennessey, a Brookings fellow, said. Regardless of Apple’s reputation, it's an American company and is therefore subject to US laws. However, one of the company’s strongest arguments will likely be the burden of creating something entirely new for the government.

"This is not sticking a key in the door and turning it," she said. "This is making the key, which falls beyond the reasonable task that underlies all writs."

This is not sticking a key in the door and turning it

Court orders are meant to assist the government in doing its job, not force companies to do the job entirely, she said.

"We’ve never seen an All Writs Act order that would force a company to not only do an amazing amount of work, but also to sacrifice its trust model," Cardozo said.

The government could come back and say that writs change over time with technology. They evolve along with the devices, and this recent order is a natural extension, Hennessey said. But that case has yet to be played out. As it stands, Apple has five business day to formally oppose the order, although it can ask for more time to do so. Once it opposes the order, the judicial process takes over, with it going first to a district court, and then progressing through the court system on appeals.

But Congress could throw a curve ball into the whole process by passing its own encryption bill that could mandate companies to build devices with backdoors built in. While the order affecting Apple impacts only one device, a Congressional law would impact devices across all brands. Cardozo believes this possibility is part of the FBI's motivation for carrying out the order through a public court, as opposed to under seal.

The FBI wants public pressure on Congress

"That choice is not a mistake," he said. "The FBI wants not only public pressure on Apple but public pressure on Congress. The FBI kind of doesn’t care if it loses this fight if it puts pressure on Congress mandating that they give them a backdoor. They can’t lose."

Congress has been waffling back and forth on encryption bills for years. Just last week, Rep. Ted Lieu (D-CA) and Rep. Blake Farenthold (R-TX) introduced a bill to prevent states from passing their own encryption bills. As far as this order, Lieu said it brings up multiple questions.

"Forcing Apple to weaken its encryption system in this one case means the government can force Apple — or any other private sector company — to weaken encryption systems in all future cases," he said in an emailed statement to The Verge. "This precedent-setting action will both weaken the privacy of Americans and hurt American businesses."

Ultimately, just as Apple CEO Tim Cook wrote in his statement, the order facilitates public discussion and thereby the need for Americans’ opinions.

"There’s a growing understanding that this is the role of Congress because it’s the role of the people," Hennessey said. As the people’s representatives, the issue falls on legislators.

Today’s Storystream

Feed refreshed An hour ago The tablet didn’t call that play by itself

Emma RothAn hour ago
Missing classic Mario?

One fan, who goes by the name Metroid Mike 64 on Twitter, just built a full-on 2D Mario game inside Super Mario Maker 2 complete with 40 levels and eight worlds.

Looking at the gameplay shared on Twitter is enough to make me want to break out my SNES, or at least buy Super Mario Maker 2 so I can play this epic retro revamp.

External Link
Russell BrandomTwo hours ago
The US might still force TikTok into a data security deal with Oracle.

The New York Times says the White House is still working on TikTok’s Trump-era data security deal, which has been in a weird limbo for nearly two years now. The terms are basically the same: Oracle plays babysitter but the app doesn’t get banned. Maybe it will happen now, though?

Asian America learns how to hit back

The desperate, confused, righteous campaign to stop Asian hate

Esther Wang12:00 PM UTC
Richard LawlerTwo hours ago
Don’t miss this dive into Guillermo del Toro’s stop-motion Pinocchio flick.

Andrew Webster and Charles Pulliam-Moore covered Netflix’s Tudum reveals (yes, it’s going to keep using that brand name) over the weekend as the streamer showed off things that haven’t been canceled yet.

Beyond The Way of the Househusband season two news and timing information about two The Witcher projects, you should make time for this incredible behind-the-scenes video showing the process of making Pinocchio.

External Link
Emma Roth4:13 PM UTC
Netflix’s gaming bet gets even bigger.

Even though fewer than one percent of Netflix subscribers have tried its mobile games, Netflix just opened up another studio in Finland after acquiring the Helsinki-based Next Games earlier this year.

The former vice president of Zynga Games, Marko Lastikka, will serve as the studio director. His track record includes working on SimCity BuildIt for EA and FarmVille 3.

External Link
Andrew J. Hawkins3:37 PM UTC
Vietnam’s EV aspirant is giving big Potemkin village vibes

Idle equipment, absent workers, deserted villages, an empty swimming pool. VinFast is Vietnam’s answer to Tesla, with the goal of making 1 million EVs in the next 5-6 years to sell to customers US, Canada and Europe. With these lofty goals, the company invited a bunch of social media influencers, as well as some auto journalists, on a “a four-day, multicity extravaganza” that seemed more weird than convincing, according to Bloomberg.

James Vincent3:17 PM UTC
Today, 39 years ago, the world didn’t end.

And it’s thanks to one man: Stanislav Petrov, a USSR military officer who, on September 26th, 1983, took the decision not to launch a retaliatory nuclear attack against the US. Petrov correctly guessed that satellite readings showing inbound nukes were faulty, and so likely saved the world from nuclear war. As journalist Tom Chivers put it on Twitter, “Happy Stanislav Petrov Day to those who celebrate!” Read more about Petrov’s life here.

Soviet Colonel who prevented 1983 nuclear response
Photo by Scott Peterson/Getty Images
The Verge
James Vincent3:03 PM UTC
Deepfakes were made for Disney.

You might have seen the news this weekend that the voice of James Earl Jones is being cloned using AI so his performance as Darth Vader in Star Wars can live on forever.

Reading the story, it struck me how perfect deepfakes are for Disney — a company that profits from original characters, fans' nostalgia, and an uncanny ability to twist copyright law to its liking. And now, with deepfakes, Disney’s most iconic performances will live on forever, ensuring the magic never dies.

External Link
Elizabeth Lopatto2:41 PM UTC
Hurricane Fiona ratcheted up tensions about crypto bros in Puerto Rico.

“An official emergency has been declared, which means in the tax program, your physical presence time is suspended,” a crypto investor posted on TikTok. “So I am headed out of the island.” Perhaps predictably, locals are furious.

The Verge
Richard Lawler2:09 PM UTC
Teen hacking suspect linked to GTA 6 leak and Uber security breach charged in London.

City of London police tweeted Saturday that the teenager arrested on suspicion of hacking has been charged with “two counts of breach of bail conditions and two counts of computer misuse.”

They haven’t confirmed any connection with the GTA 6 leak or Uber hack, but the details line up with those incidents, as well as a suspect arrested this spring for the Lapsus$ breaches.

The Verge
Richard Lawler1:00 PM UTC
Green light.

Good morning to everyone, except for the intern or whoever prevented us from seeing how Microsoft’s Surface held up to yet another violent NFL incident.

Today’s big event is the crash of a NASA spaceship this evening — on purpose. Mary Beth Griggs can explain.

David Pierce12:54 PM UTC
Thousands and thousands of reasons people love Android.

“Android fans, what are the primary reasons why you will never ever switch to an iPhone?” That question led to almost 30,000 comments so far, and was for a while the most popular thing on Reddit. It’s a totally fascinating peek into the platform wars, and I’ve spent way too much time reading through it. I also laughed hard at “I can turn my text bubbles to any color I like.”