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Friday, April 08, 2016

FBI/Apple: Copy of the Feinstein-Burr Discussion Draft Released

As many of you know, the FBI obtained an ex parte court order from the Federal Court in the Central District of California regarding the iPhone that was apparently used by Syed Rizwan Farook, one of the two killers in the San Bernardino mass shooting last December.  In essence, the order required Apple to provide "technical assistance" in the form of drafting software to allow the government access to the data on the iPhone.

Rather than immediately comply, Apple filed a motion to vacate the order raising various arguments. Among them, Apple argued that such software would compromise security and that "the unprecedented order requested by the government finds no support in the law and would violate the Constitution." Apple's Motion to Vacate, at 5. Additionally, Apple argued that end-to-end encryption was the safer and more secure course for all iPhones, and the existence a government "backdoor" created vulnerabilities that could affect all users. See Apple's Reply, at 19-20. More generally, Apple objected to creating a government-specific operating system. Of course, ultimately a third party proffered a solution to the FBI and this matter has been dismissed.

In the meantime, a discussion draft of the Feinstein-Burr "Compliance with Court Orders Act of 2016" has been released (accessible here). This draft appears to mandate that any covered entity (presumably, device makers and software companies) that receives a court order for information or data must provide the information in an intelligible format or provide technical assistance to do so. Such delivery must be made concurrently with the data's transmission, or expeditiously if stored on a device. The bill provides that covered entities will receive compensation.

As others have recognized, the draft is not entirely clear in many respects. For example, it is unclear whether the statute contemplates that a covered entity will have the opportunity to challenge the legality of such an order in court prior to compliance. This is especially important if orders are issued ex parte. Further, the bill provides that it shall not be construed to compel "any specific design or operating system to be adopted by any covered entity" which was, of course, one of Apple's objections to the California order. 

It has been reported that the White House has not issued support for the bill at present (see also, here).


Postscript: Although the California action has been dismissed in light of the undisclosed 3rd party's assistance, an action in New York raising parallel issues continues (source).

Posted by Amy Landers on April 8, 2016 at 10:12 AM | Permalink


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