Holding the FBI Accountable for Hacking Apple's Software under the Takings Clause

By Levy, Mark S. | American University Law Review, January 5, 2017 | Go to article overview

Holding the FBI Accountable for Hacking Apple's Software under the Takings Clause


Levy, Mark S., American University Law Review


"Data is the pollution problem of the information age, and protecting privacy is the environmental challenge."

-Bruce Schneier1

Introduction

Employers customarily host workplace holiday parties to thank their employees and celebrate their hard work over the past year; nothing was customary, however, about one holiday party on December 2, 2015, in San Bernardino, California. The sounds of festive music and laughter were quickly replaced by deafening gunshots and screams for help when Syed Rizwan Farook and Tashfeen Malik opened fire on a crowd of innocent victims.2 Fourteen people were violently slain; twenty-two people were senselessly injured.3 The tragedy stirred emotions across the country, but it also relaunched an important legal debate about individual privacy.

Law enforcement officers often struggle to understand why individuals commit such heinous crimes, but these two assassins left behind one item that could provide clarity: an iPhone. However, the federal government encountered a roadblock in its investigation when it sought to access the locked iPhone of one of the shooters.4 The Federal Bureau of Investigation (FBI) hoped to find inculpatory evidence and uncover other parties who may have been involved in the attack.5 But, a user-determined passcode blocked law enforcement's access to the phone, and the FBI risked the phone's data automatically erasing if it guessed the wrong passcode just ten times.6 Though it obtained a federal court order directing Apple Inc. ("Apple") to design new software that would help the agency open the iPhone,7 the FBI felt the wheels of justice were turning too slowly, so it took matters into its own hands. It hired professional hackers to circumvent the shooter's passcode, smashing the digital lock that protected Apple's copyrighted software and jeopardizing the security and privacy of hundreds of millions of people storing sensitive information on their iPhones.8

The events following the San Bernardino massacre stoked the coals of a fire already burning bright among individuals with varying religions, philosophies, and ideologies. They reinvigorated a debate the nation has wrestled with many times since September 11-one concentrated at the intersection of national security and individual privacy. Americans differ as to how the federal government should balance these competing interests,9 but the debate does not always consider other important concerns, such as the extraordinary economic cost of exposing intimate information.

in the modern world, effortless access to information is within an arm's length at all hours of the day. we use devices like iPhones both to explore the depths of the internet and to store our most intimate personal information. Although information is the lifeblood of our economy and we often desire open access, we also go to great lengths to protect it.10 Apple has done so by encrypting users' personal information stored in iPhones-essentially, a lock with only one irreproducible key. However, these user-determined passcodes erect formidable barriers for law enforcement officials investigating crimes. officials have recently begun developing ways to circumvent this technology, but developing such access is not cheap, and it is the technology company-not the government-that bears the ultimate cost. While investigating the san Bernardino shooters, the federal government crafted a master key capable of opening any user-determined lock, jeopardizing the privacy of our personal information and thus harming Apple's security and reputation.

This type of clandestine security breach casts a wide shadow, leaving many of us in the dark about the government's attempt at balancing national security and individual privacy. users store a variety of intimate information on their iPhones: financial records, emails, text messages, family photos, and personal notes. Because the software to circumvent Apple's user-determined passcodes did not exist before, the FBI altered Apple's copyrighted software. …

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