Apple vs FBI Timeline: What You Need to Know
On Feb. 16, 2016, Apple refused to comply with a court order to help the FBI unlock an iPhone used by Syed Rizwan Farook, one of the two suspected shooters in the San Bernardino terrorist attack on Dec. 2, 2015.
Credit: 1000 Words/Shutterstock
The case has been in the headlines ever since, and we've tried to keep up with the daily events surrounding it. The next hearing in the case was set to have been on March 22, but it was abruptly canceled as the FBI said it may have found a way into the phone that doesn't involve Apple.
The FBI was given until April 5 to see whether its new method worked, but on March 28 announced that it had, and that it no longer needed Apple's assistance. Here's a quick timeline, in reverse chronological order, of this convoluted case, with the most recent news up top.
March 29, 2016: U.S. Magistrate Judge Sheri Pym vacates the order compelling Apple to assist the FBI.
March 28: The Department of Justice tells the judge and Apple's lawyers that the FBI has gained access to the data on Farook's iPhone, and asks the court to vacate the order compelling assistance from Apple. The case appears to be over.
March 25: Former CIA and NSA chief Michael Hayden has a simple message for the FBI in its worries about encryption: "Get over it."
"Understand that no matter what we do with Apple, it's going to get harder and harder to get content," Hayden tells the American Enterprise Institute in a speech in Washington, D.C.
Instead, law-enforcement agencies should do what the NSA does, he says — focus on the huge amount of communications metadata available, which can tell you who's talking to whom and how often, rather than what's being said.
There are "incredible volumes of digital exhaust blowing out there right now into the atmosphere that a good intelligence service can collect ... and glean an incredible volume of information," Hayden says. "It's just you're not going to be able to get content."
March 23: An Israeli newspaper says Israeli digital-forensics firm Cellebrite is the "outside party" helping the FBI decrypt Farook's iPhone. There's no confirmation, but Cellebrite already contracts for the FBI and other U.S. law-enforcement agencies. The odd timing of the Department of Justice's application to postpone the March 22 court hearing indicated that the "outside party" might be overseas and in a country where Sunday is a workday.
March 21: At an event introducing the iPhone SE on Apple's campus in Cupertino, California, Apple CEO Tim Cook says, "We need to decide how much power the government should have over our data and our privacy."
"We did not expect to be in this position — at odds with our own government," Cook said. "But we believe we have a responsibility to our customers. This is an issue that affects all of us, and we will not shrink from this responsibility."
Later that same day, the judge in the Farook case cancels a hearing set for March 22. The FBI says an "outside party" has demonstrated a viable method of accessing the data on Farook's iPhone without Apple's help. The order compelling Apple to cooperate with the FBI is stayed pending the outcome of the FBI's new method.
March 20: The Washington Post reveals that a flaw has been discovered in the way Apple's iMessage service handles encrypted photos and videos, and that viewing and copying such files is possible for a skilled third party. Apple's iOS 9.3 update should fix the flaw.
In a long feature, Bloomberg News says Apple's relationship with law enforcement first soured with iOS 8, which made previous data extraction methods impossible. (Until then, Apple routinely pulled data from devices sent to its headquarters, according a companion piece.) Behind-the-scenes dialogue continued for 18 months, the feature says, until the FBI decided to go public with the Farook request, surprising and angering Apple.
March 19: The New York Times gets a look at a Paris police report on the Nov. 14, 2015 attacks in that city. The newspaper notes that the attackers used so many "burner" cellphones that boxes of unopened phones were found. But it also concludes, perhaps erroneously, that the attackers used encrypted messaging because no traces of archived messages were found on their cellphones or computers.
March 17: Cook gives an interview to Time magazine in which he says that this case is "not about one phone. It's very much about the future."
If the government bans unbreakable encryption, he argues, "bad guys will use encryption from non-American companies."
"We're in this bizarre position where we're defending the civil liberties of the country against the government," he says. "I still feel like I'm in another world — that I'm in this bad dream."
In an opinion piece in the same issue, Sen. Tom Cotton, R-Arkansas, says that "Apple is not fighting for privacy; it's fighting for profit."
"If Apple succeeds, the implications will be broad and dire." Cotton writes. "Terrorists and criminals will feel free to plot, organize, and instigate through their iPhones, iPads, and MacBooks because Apple will protect its brand more than our safety and security."
March 15: Apple replies to the Department of Justice's motion to force the company to immediately comply with the court order, directly addressing the mystery of why the FBI did not ask the National Security Agency to help unlock Farook's iPhone.
"The government does not deny that there may be other agencies in the government that could assist it in unlocking the phone and accessing its data," the filing states. "Rather, it claims, without support, that it has no obligation to consult other agencies."
Apple also invokes the Communications Assistance for Law Enforcement Act of 1994 to argue that it cannot legally be compelled to decrypt data if it does not possess the decryption key.
Ironically, the FBI has for years been seeking to add Apple and other providers of Internet-based encrypted messaging to the types of service providers compelled by CALEA to provide law enforcement agencies access to communications. (Stored data, such as on Farook's iPhone, might not be covered by CALEA even if the law were amended to include Internet communications providers.)
In a supporting declaration to Apple's reply, Apple security engineer Erik Neuenschwander says the FBI fundamentally misunderstands certain things about iOS, including the difficulty of creating a security override for Farook's phone, the ease with which the code for that override could be stolen, and whether Farook could have erased iCloud backups from the iPhone itself.
Neuenschwander also says that, despite a claim by an FBI forensics expert, iCloud backups are not encoded with the user's iPhone password. iCloud backups are known to currently be decipherable by Apple.
The Wall Street Journal reports, without naming sources, that Apple is working to make iCloud backups undecipherable by Apple itself.
Re/Code reports that many other Silicon Valley companies, including Microsoft, Google, Facebook, Twitter, WhatsApp and Box, decided to band behind Apple in a secret conference call on Feb. 26.
March 14: Former White House counterterrorism adviser Richard Clarke tells National Public Radio that the FBI could simply have asked the National Security Agency to break into Farook's iPhone, but chose instead to create a public controversy.
"Every expert I know believes that NSA could crack this phone," Clarke said. The FBI and the Department of Justice "want the precedent that the government can compel a computer device manufacturer to allow the government in."
"You really have to understand that the FBI director is exaggerating the need for this and is trying to build it up as an emotional case," Clarke added. "They're not as interested in solving the problem as they are in getting a legal precedent."
March 13: Comedian John Oliver explains the Apple-vs.-FBI tussle on HBO's "Last Week Tonight." He's pretty accurate — and pretty hilarious.
The New York Times reports that the Department of Justice wants access to encrypted WhatsApp messages — something that WhatsApp, owned by Facebook, says it simply can't provide. (See our smartphone-encryption explainer for the differences between communications encryption and data-storage encryption.)
March 11: At the SXSW conference in Austin, Texas, President Barack Obama makes his first public statements on smartphone encryption since the Apple-vs.-FBI battle became public.
"If it's technologically possible to make an impenetrable device or system, where the encryption is so strong that there's no key — there's no door at all — then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot?" Obama said. "If your view is strong encryption no matter what … that does not strike the balance that we've lived with for 200 or 300 years. And it's fetishizing our phones above every other value. That can't be the right answer."
March 10: The U.S. Department of Justice formally responds to Apple's Feb. 25 motion to dismiss the court order to help unlock Farook's iPhone. The DoJ filing says that Apple made a "deliberate marketing decision to engineer its products so that the government cannot search them."
"Instead of complying," the reply says, "Apple attacked the All Writs Act as archaic, the Court's Order as leading to a 'police state,' and the FBI's investigation as shoddy, while extolling itself as the primary guardian of Americans' privacy. Apple's rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government."
In response, Apple top lawyer Bruce Sewell says in a conference call with reporters that, "In thirty years of practice, I don't think I've ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo and less intended to focus on the real merits of the case."
"It seems like disagreeing with the Department of Justice means you must be evil and un-American," Sewell adds. "Nothing could be further from the truth."
March 8: NSA document leaker Edward Snowden tweets from exile in Moscow, using an, um, barnyard epithet to say that the FBI's claim that it cannot unlock Farook's iPhone with Apple's help is false. He cites an ACLU paper to that effect; Ars Technica writer Peter Bright details other ways in the which FBI might be able to get in on its own.
In an interview in Spanish with Univision, Apple head of Internet software Eddy Cue says that forcing Apple to create software to help unlock Farook's phone could lead to the government forcing ordinary people to turn on their smartphone cameras and microphones when asked.
March 7: The Dept. of Justice appeals to U.S. District Court in Brooklyn, New York, asking it to compel Apple to unlock a confessed drug dealer's iPhone. A lower federal justice, Judge James Orenstein, had refused to use the All Writs Act, a 1789 law giving judges the ability to order parties to produce materials relevant to a criminal case, to force Apple to comply.
"The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before," the DOJ motion says. "The company has complied every time. Until now."
John Miller, deputy commissioner of the New York City Police Department, and a former ABC News and CBS News journalist, reportedly tells a New York radio show that Apple is "providing aid to the kidnappers, robbers and murderers who have actually been recorded on the telephones in Rikers Island telling their compatriots on the outside, 'You gotta get iOS 8. It's a gift from God,' — and that's a quote — 'because the cops can't crack it.'"
The Huffington Post reports that at the American Enterprise Institute's World Forum over the weekend, Apple CEO Tim Cook and Sen. Tom Cotton, R-Arkansas, debated smartphone encryption.
"Cotton was pretty harsh on Cook," an unnamed source reportedly said. "Everyone was a little uncomfortable about how hostile Cotton was."
March 6: Craig Federighi, senior vice president of software engineering at Apple, pens an op-ed for The Washington Post in which he says that "the FBI, Justice Department and others in law enforcement are pressing us to turn back the clock to a less-secure time and less-secure technologies."
March 4: Commenting on the Apple case, Prince Zeid Ra'ad Al-Hussein, United Nations High Commissioner for Human Rights, says in an official statement that "the authorities risk unlocking a Pandora's Box that could have extremely damaging implications for the human rights of many millions of people, including their physical and financial security."
"A successful case against Apple," he says, "will set a precedent that may make it impossible for Apple or any other major international IT company to safeguard their clients' privacy anywhere in the world."
March 3: More than 50 companies and organizations, including the ACLU, Amazon, AT&T, Cisco, eBay, the Electronic Frontier Foundation, Facebook, Google, Human Rights Watch, Intel, LinkedIn, Microsoft, Mozilla, Reddit, Twitter and Yahoo sign on to amicus briefs in support of Apple in the Farook case. So do nearly 90 legal and technology experts.
At the RSA security conference in San Francisco, Mike McConnell, former director of the National Security Agency, and Michael Chertoff, former head of the Department of Homeland Security, speak in favor of unbreakable encryption, deeming it a national necessity.
March 1: FBI Director James Comey, Apple lawyer Bruce Sewell and Manhattan District Attorney Cyrus Vance Jr. testify before the House Judiciary Committee on the Farook case.
Rep. Michael McCaul, R-Texas, head of the House Homeland Security Committee, and Sen. Mark Warner, D-Virginia, introduce a bill that would establish a national commission to study device encryption and advise on any further legislation.
The Digital Equilibrium Project, a group of current and former government officials, privacy advocates and information-security industry executives, calls for "ending stalemate and fostering real dialogue that can help forge the laws, policies, and social norms needed" for "a peaceful, safe, and secure digital age."
Feb. 29: Federal Magistrate Judge James Orenstein rules that Apple cannot be compelled to unlock an iPhone used by a drug dealer in Queens, New York. In his 50-page decision, Orenstein says the government's use of the All Writs Act, a 1789 law giving judges the ability to order parties to produce materials relevant to a criminal case, may be unconstitutional. Orenstein's decision has no direct bearing on the Farook case, but lends Apple theoretical support.
Feb. 25: Apple responds to the court order in the Farook case, citing the First and Fifth Amendments in its 65-page motion to vacate the order.
Feb. 24: Apple CEO Tim Cook appears in an interview on ABC News and calls the FBI's request "the software equivalent of cancer."
Former National Security Agency and Central Intelligence Agency Director Michael Hayden takes a position similar to Apple's, telling CSM Passcode that "American security — if you truly understand the rich, full meaning of security — is better served with unbreakable, end-to-end encryption."
Maricopa County, Arizona, which includes Phoenix, announces that it will no longer buy iPhones for county employees.
Feb. 23: A Pew survey of U.S. citizens finds that 51 percent of respondents think Apple should help the FBI unlock Farook's iPhone.
Meanwhile, Apple's lawyers release a list of 12 iPhones in nine other cases, none involving terrorism, that the FBI wants Apple to help unlock. New York City Police Commissioner William Bratton co-authors a New York Times opinion piece criticizing Apple's refusal to unlock iPhones.
Feb. 21: On the Lawfare legal blog, FBI Director Comey calls for legislation governing the unlocking of smartphone, saying that the "serious tension between two values we all treasure — privacy and safety ... should be resolved by the American people."
Feb. 19: The Department of Justice files a motion seeking immediate action on Farook's iPhone, stating that Apple's refusal to cooperate "appears to be based on its concern for its business model and public brand marketing strategy."
Meanwhile, Apple sources tell the press, and the FBI later confirms, that the FBI lost a chance to collect all the data on Farook's iPhone because it reset the password on Farook's iCloud account during the scramble for evidence following the Dec. 2 shootings.
Bloomberg News reported that in a secret White House meeting in the fall of 2015, national-security officials had ordered law-enforcement and intelligences agencies to find ways to crack iPhones and other encrypted devices.
Feb. 18: Sen. Richard Burr, R-North Carolina, head of the U.S. Senate Intelligence Committee, writes in an opinion piece in USA Today that "the outcome of this dispute will also have a drastic effect on criminal cases across the country. … Murderers, pedophiles, drug dealers and the others are already using this technology to cover their tracks."
Feb. 17: In the conservative journal National Review, columnist Kevin D. Williamson applauds Apple's stance, writing that "the federal government has shown, time and again, that it cannot be trusted with any combination of power and sensitive information."
Feb. 16: Apple refuses to unlock San Bernardino terror attack suspect Syed Rizwan Farook's work iPhone, citing issues over whether use of All Writs Act is legitimate.
Feb. 12: Even though the suspect in the Brooklyn drug case has pleaded guilty, the issue of the All Writs Act remains open. Apple asks the judge to rule on the matter.
Oct. 25, 2015: Apple refuses to unlock an iPhone 5c running iOS 7 in a drug case in Brooklyn, New York, after the judge asks whether Apple has objections to the U.S. government using the All Writs Act to compel assistance.