The FBI may face a new hurdle in their eager attempt to get around Apple's encryption technology and unlock the iPhone of one of the San Bernardino terrorists, and that would be Apple's core team of mobile OS engineers. According to some employees inside the company who spoke to the New York Times, there is already talk of who on the engineering staff would likely be conscripted to do the work on behalf of the government, pending a decision in federal court, and those key engineers are already saying they'll simply quit in defiance. And if you think that's a bluff, consider that engineers working at the highest levels of mobile security would be in high demand all over Silicon Valley. As one venture capitalist and former Apple engineer, Jean-Louis Gassée, tells the Times, "It's an independent culture and a rebellious one [at Apple]. If the government tries to compel testimony or action from these engineers, good luck with that."
A federal judge has already ordered Apple to build a new special OS for the government, now being dubbed "GovtOS" within the company, that will allow them to unlock and retrieve data from the phone belonging to deceased mass shooter Syed Rizwan Farook, who along with wife Tashfeen Malik killed 14 people and injured 21 others in San Bernardino in December. Apple is appealing that decision, and has said in a statement that "Such conscription is fundamentally offensive to Apple’s core principles and would pose a severe threat to the autonomy of Apple and its engineers."
As Macworld explains, what the government specifically wants is a version of the OS to work specifically with Farook's locked iPhone 5C. "With iOS 8 and higher, unsuccessfully guessing the phone’s password too many times automatically erases the phone’s data, so the FBI wants Apple to load a separate version that allows unlimited brute force password attempts."
Key engineers could also just take sick leave or leaves of absence rather than quit, but in the event that Apple's software engineers all decide to resign in protest, it could actually result in Apple successfully getting off the hook for what the government wants, should they have already exhausted their legal options. Says one former federal prosecutor to the Times, "If and this is a big if every engineer at Apple who could write the code quit and, also a big if, Apple could demonstrate that this happened to the court’s satisfaction, then Apple could not comply and would not have to. It would be like asking my lawn guy to write the code."
The entire engineer community has been up-in-arms about this case, and it has brought out the liberal and libertarian voices in Silicon Valley en masse. As Macworld says, "To date, not a single security or cryptography expert has taken the Department of Justice’s side [in this case]."
Also, just yesterday, Harvard Law professor Susan Crawford and former special assistant to President Obama Susan Crawford wrote a post on Backchannel noting that the Communications Assistance for Law Enforcement Act (CALEA), passed in 1994, specifically says that the government can not "require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer.
And, for the law wonks out there, she talks about the legal jiujitsu the feds are attempting, in re: CALEA.
The FBI has been terrific at reading statutes including CALEA in ways that require the rest of us to do headstands to understand what the agency is up to. Their claim about CALEA in their latest brief in the Apple case is a shining example of just this kind of breathless, vertiginous, Alice-in-Wonderland assertion: CALEA, they say, limited only law enforcement’s authority to directly require companies to redesign devices and software. But once law enforcement is authorized by a court to do a search given a search warrant, in other words then (under the All Writs Act) an FBI official can ask the court to do what law enforcement is prohibited from doing directly under section 1002 of CALEA.
A federal judge in a separate drug case has already nullified that argument in a decision from last month.
We all await the appellate decision in the iPhone case, and a potential weigh-in, or pass, from the eight-person Supreme Court.