As STLR discussed a few weeks ago Apple is challenging a court order to unlock the phone of one of the San Bernardino shooters. The current dispute between the government and Apple may be viewed as another chapter in a long-standing debate between law enforcement and intelligence agencies, who need to execute search warrants and conduct surveillance effectively, and consumers’ interests in privacy and security. I believe that understanding the history of this debate is important for contextualizing the current dispute between Apple and the government.
Technology Companies Respond to the NSA Revelations
When The Guardian and then The Washington Post began publishing stories revealing large-scale government surveillance, many technology companies faced criticism both domestically and abroad. Tech companies implicated in the trove of documents released by Snowden appeared to be at least participants – even if unwilling – in the government’s surveillance. Moreover, technology companies’ ability to discuss the extent to which they had complied with government orders for surveillance was legally limited, so tech companies like Apple and Google responded, in part, by improving security to gain consumer trust again. The move has been criticized by law enforcement and the government’s pursuit of court orders to compel Apple to assist law enforcement may be viewed as an attempt to regain ground in the tug-of-war between privacy concerns and law enforcement’s interest in effectively executing authorized search warrants and other surveillance. However, the tension between these interests does not have its origin in the NSA surveillance revelations, rather, it stretches back at least twenty years. The history of this debate provides some insight into the current case that Apple faces in opposing a court order to unlock the phone of one of the San Bernardino shooters.
The “Clipper Chip” Saga
In the mid-1990s similar concerns came to a head in debates over the use of encryption that hindered the government’s ability to gather intelligence and execute search warrants. The White House attempted to step in to remedy law enforcement’s concerns with a voluntary program involving a computer chip called the “Clipper Chip.” Under the program, telecommunications manufacturers could install the Clipper Chip into computers and telephones. The chip would use encryption to transmit information, allowing consumers to safeguard their communications, but the keys to decrypt these communications would have been held in a government-managed “key escrow.” The Department of the Treasury and the Department of Commerce would have managed the escrow service so that when law enforcement or intelligence agencies acquired authorization for a wiretap, they could gain access to the decryption keys through the Department of Commerce and the Treasury to execute the warrant. The White House viewed the program as a way to remedy law enforcement’s fears that widespread adoption of encryption technologies would altogether eliminate their ability to perform authorized surveillance.
Ultimately, the Clipper Chip proposal was unsuccessful after outcry from privacy groups and technologists alike. Opponents of the Clipper Chip cited concerns of government spying through potential backdoors and worries that adoption of a standard government-approved encryption mechanism would harm incentives to innovate in electronic privacy protections.
Congress Provides a Legislative Compromise
During this time, Congress passed legislation – called the Communications Assistance for Law Enforcement Act (CALEA) – that required telecommunications providers to ensure that they could comply with court orders for the isolation and interception of communications across their network. Arguably in light of the debate around the Clipper Chip, CALEA also included a provision that prohibited the government from requiring specific equipment or system configurations for telecommunications equipment. It is this provision that Apple seized on in its motion to vacate for the proposition that CALEA limits the type of assistance the government may seek from a private company during an investigation.
Putting the Apple Case in this Historical Perspective
From this perspective, the government’s current case against Apple to gain access to an encrypted phone may be viewed as an attempt to accomplish through the courts what was not completely successful through legislative and executive fora two decades ago. While telecommunications manufacturers are required to enable the execution of legally authorized surveillance, the government may not impress design requirements upon those manufacturers. Apple characterizes the government’s position as demanding that it create a back door to the iPhone. This is similar to the concerns critics emphasized during the Clipper Chip debate and may even be one of the concerns Congress had in mind when it passed the CALEA limitations in 1994. The Clipper Chip and CALEA were proposed amid concerns that criminals and terrorists could completely block authorized government surveillance by relying on strong encryption. The Apple case in the Central District of California epitomizes the concerns of law enforcement that were expounded over the last twenty years: that strong encryption would eviscerate law enforcement techniques for investigating terrorism. Given these circumstances, I do not believe that this was the test case Apple would have desired in opposing government access to private data. Apple’s focus has been on the wider consequences of a ruling in favor of the government, rather than on the particular circumstances of this case. Apple argues that the decision to force a company to cooperate with law enforcement should be made not by judicial decree but through the legislature. The company has gone so far as to call on Congress to form a commission to take up the issue – of course, after withdrawing the court order.
It is unclear if the government’s request in this case – for Apple to develop software to override a security feature of a single device – falls into the exception in CALEA that law enforcement may not “require [a] specific . . . feature . . . be adopted by . . . any manufacturer of telecommunications equipment.” From the government’s perspective, they are not seeking broad adoption by Apple of a particular feature, but only assistance in accessing information on a single phone. Apple, on the other hand, argues that even if the software was limited to a single phone, there is nothing to prevent additional requests from law enforcement for such individualized back doors. So any requirement to develop such software amounts to a government mandate for adoption of a specific feature in contravention of CALEA. Considering the national security issues raised by this case, the language of the limitation in CALEA is what may allow the court to develop a narrow holding requiring Apple to assist in this case only. The resolution of the Apple case depends on whether the court adopts the view that the government is merely requesting access to information, rather than mandating that Apple adopt a particular design feature. If the court rejects the idea that the government’s request amounts to a mandate for Apple to adopt a specific feature, the determination will be guided by the application of the All Writs Act as was discussed by my colleague last month. A narrow holding in the Apple case would not resolve the broader tension between privacy and effective law enforcement investigative techniques; however, it may allow the debate to be fleshed out through the legislative process. Addressing the issue through Congress may provide a more satisfying answer to the question are an individual’s right to keep some communications private so extensive as to bar law enforcement from ever accessing them, even where the government has a strong, legitimate interest in the information and access has been legally authorized.
The lesson from the 1990s – and the balance CALEA sought to strike – is that while the government may not dictate how private companies develop new products, those companies must enable – or at least not undermine – legitimate law enforcement investigations. CALEA was directed to already heavily regulated telecommunications providers and, to some extent, required of them to provide the capability to collect communications. In Apple’s case, the court is asked to re-draw a line between private enablement and government commandeering after twenty years of innovation since the Clipper Chip was proposed.
 See e.g. 18 U.S.C. § 2709(c)
 47 U.S.C. § 1002(b)
 Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search, and Opp’n to Government’s Mot. to Compel Assistance, at 15-17, available at http://www.nytimes.com/interactive/2016/02/25/technology/document-apple-motion-opposing-iphone-order.html (last visited March 11, 2016).
 Id. at 7.
 Id. at 2.
 47 U.S.C. § 1003(b).