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Government Now Using 227-Year-Old Law to Fight Encryption

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Apple CEO Tim Cook remained defiant after a federal judge earlier this week ordered his company to help the FBI break into an iPhone that belonged to one of the San Bernardino shooters.

In an open letter published Wednesday morning, Cook promised to fight the order, and called the actions by the US government an “unprecedented step” in its efforts to undermine privacy protections.

Like all new iPhones manufactured in the last few years, the device belonging to Syed Rizwan Farook used full-disk encryption, which prevents anyone—including Apple itself and law enforcement—from accessing the data inside without the knowledge of a passcode.

Federal Magistrate Judge Sheri Pym ruled in Riverside, Calif. on Tuesday that Apple must comply with the FBI, and install new software on the device, permitting police to bypass that encryption.

The bureau argued that the All Writs Act of 1789, which allows the government to force a third party to comply with a warrant if not “unduly burdensome,” should compel Apple to assist in unlocking the phone. Farook was killed by police at the end of the Dec. 2 mass killings.

By forcing Apple to install software that disables an iPhone security feature that erases all data after ten failed password entry attempts, the FBI can use “brute force” to barrage the device with millions of possible passcodes until they find the right one to crack it open.

“The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers—including tens of millions of American citizens—from sophisticated hackers and cybercriminals,” Cook said Wednesday.

“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,” he added. “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.”

Encryption has long been necessary in the digital world, allowing for the secure transfer of private information including credit card data, medical records, and trade secrets.

Use of the technology exploded in the summer of 2013, following media reports on US government spying written with information provided by NSA whistleblower Edward Snowden. Encrypted services are now offered more widely by numerous tech companies, including one of Apple’s top competitors, Google.

The legal actions taken against Apple mark a significant escalation in the US government’s attack on secure communications, which officials claim are being exploited by terrorists.

Late last year, the administration formally backed off asking Congress to pass legislation that would mandate “backdoors” or “master keys” for police to use to crack scrambled data upon obtaining a warrant.

Industry representatives, tech experts, and advocates have long argued that the government’s requests for a secure backdoor is impossible, and that achieving it would fundamentally undermine encryption, allowing not just police to exploit future weaknesses, but also hackers and foreign governments.

This week’s court ruling could have the same effect, the Electronic Frontier Foundation, a nonprofit digital rights group, said in a statement released Tuesday night.

“The government is asking Apple to create a master key so that it can open a single phone,“ the group said. “Once that master key is created, we’re certain that our government will ask for it again and again, for other phones, and turn this power against any software or device that has the audacity to offer strong security.”

Apple CEO Tim Cook’s pledge to challenge the FBI on the court order means this fight will likely not be resolved anytime soon. The case will make its way through the appellate court system, and could ultimately end up before the Supreme Court.

On the campaign trail, GOP presidential frontrunner Donald Trump slammed Apple’s defiance.

“To think that Apple won’t allow us to get into her cellphone,” Trump said on Fox News Wednesday morning. “Who do they think they are? No, we have to open it up.”

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