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The Fruit and the Fuzz

Apple’s standoff with the FBI raises important issues in respect of encryption, “backdoors”, cyber security, national security and privacy.

As you may have heard, Apple and the FBI are currently embroiled in a highly publicised court case. In essence, the FBI wants to unlock an iPhone 5C that belonged to Syed Farook, who with his wife Tashfeen Malik shot and killed 14 co-workers on 2 December 2015 in California. While Apple has already provided the FBI with the information available from the backups made with Apple’s iCloud service, those backups stopped on 19 October 2015.

Understandably, the FBI wants access to the data stored on the phone that was not backed up to iCloud. To do this, the FBI needs the four-digit passcode to Farook’s iPhone. Surely the FBI could have an office junior sit in the corner and type in each of the thousands of possibly combinations until the phone unlocks, right? Unfortunately, there is a catch; modern iPhones have an optional feature that erases all data on the phone with 10 incorrect passcode entries. The FBI aren’t willing to take the risk that this feature has been enabled.

The FBI’s solution has been to require Apple to develop a firmware update that, when uploaded onto Farook’s phone will disable that Erase Data setting. They have also requested that the software include a feature to disable the delay between passcode attempts, plus allow passcodes to be inputted by a computer

Apple have rigorously resisted the FBI request, suggesting that compliance with their request would provide a “backdoor” to iPhone security features, therefore seriously compromising the security features of its products. The FBI have argued that this is not the case and that the software would be used for Farook’s phone only, and could then be destroyed.

Whether Apple or the FBI is correct is up for debate. While the story is newsworthy in itself, much of recent publicity has been in relation to the various celebrity “endorsements” (Donald Trump, Mark Zuckerberg, Bill Gates etc) for either side. Ultimately, however, it is likely to be the Courts that will have the final say. In this regard, the Courts, so far, have sided with the FBI (although both parties are likely to exhaust all appeal avenues, with the next hearing is scheduled to take place in California on 22 March 2016).

What does it mean for you?

For the moment, probably not a lot. Although, for many it will raise concerns around the ability to control and protect personal information and, perhaps, some more broader concerns in relation to the Government’s power over its citizens. While this case is playing out in the US under US law, it is worth noting that the UK Government recently proposed the “Investigatory Powers Bill”, which would introduce a new set of regulations overseeing surveillance carried out by law enforcement, security and intelligence agencies. This draft legislation contains sections that, some have argued, could be used to order technology companies to strip their customers’ communications of encryption, or circumvent other digital protections in their products.

Until the issues canvassed above or decided, we suggest the case is used as a reminder of the importance of data protection and to ensure that your standard terms and conditions adequately deal with unique situations that one day may just arise. The team at White & Black would be happy to help you with any related queries.

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

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