On February 16, federal magistrate Sheri Pym ordered Apple to assist the FBI in gaining access to information on an iPhone belonging to one of the San Bernardino shooters. Apple, however, is opposing the order. The company claims that the actions the order would require threaten the security of its customers. In an open letter authored by Apple CEO Tim Cook, the order is described as “dangerous,” “unprecedented,” and “chilling.”

Why can’t the government unlock the iPhone?

iPhones are equipped with a numeric passcode that limits who can access the data on the iPhone. If you know the passcode, you can access the data stored on the phone. However, if you don’t know the passcode and, in an attempt to gain access, you enter an incorrect code more than ten times, then all data on the phone could be permanently erased. A user must enable this function. However, it is impossible to tell whether the “auto-erase” function is enabled by simply looking at the “locked” screen.

If the auto-erase function is not enabled by the user, it would be possible to access the iPhone through a “brute-force” attack. In this case, a brute-force attack is an attempt to access data by using a computer to generate combinations of numbers until one finally unlocks the phone. However, iPhone iOS 8 also has built in software that will slow down the operation of the phone if someone is trying to guess the passcode.

(Also, this isn’t the first time the feds have been upset about Apple’s privacy features. Apparently, Apple’s encryption is so good that, according to some folks in the DEA, “it is impossible to intercept iMessages between two Apple devices.”)

What does the government want Apple to do?

Cook describes the court order as requiring Apple to create a “backdoor” to the iPhone. Specifically, the government believes that Apple’s assistance can accomplish the following:

(1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

What’s strange about the whole thing is that the U.S. Attorney’s office in Los Angeles that filed the brief argued that the All Writs Act of 1789 gives the FBI the legal authority to enlist Apple in the investigation of the San Bernardino shooters. The All Writs Act provides:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

28 U.S.C. 1651.

A writ is an order. This particular statute is an apparent catchall that allows courts to issue orders when no other law is on point to serve as a legal basis for an order. The statute has been the basis for a number of surveillance operations by the government. In 1977, it was the basis of an order compelling a telecommunications company to assist the government in a spying operation. The company challenged the order and the fight went all the way to the Supreme Court. The Court ruled that the order was valid and the company had to assist the FBI. U.S. v. New York Telephone Co., 434 US 159 (1977).

What happens next?

Apple has 4 days left to respond to the order. If it can show that complying with the order would be unreasonably burdensome, then it will not be required to assist the FBI. The consequences of upholding this order would be another step in the ordering and management of society through surveillance. In the words of Cook:

If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Oddly, this is essentially a requirement for existing telecommunications providers under the Communications Assistance for Law Enforcement Act (CALEA). CALEA was passed in 1994 during Clinton’s presidency and requires telecommunications providers “ensure that…equipment, facilities, or services” are built in such a way as to allow federal agencies the power to monitor communications sent through such equipment, facilities, or services. 47 U.S.C. 1002. While CALEA applies to the interception of communications and not necessarily the retrieval of data after a particular incident, the message from the government is clear: you have no privacy and any time to you try to protect yourself, we will pry the lid off and dig into every detail of your life—and we will force private companies or individuals to help us.

For more on the legal history of surveillance, see our article in Monthly Review.