{
  "id": "R44396",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R44396",
  "active": true,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 450043,
      "date": "2016-02-23",
      "retrieved": "2016-04-06T17:04:14.779336",
      "title": "Court-Ordered Access to Smart Phones: In Brief ",
      "summary": "The tension between the benefits and challenges of encryption has been an issue for law enforcement and policymakers since the 1990s, and was reinvigorated in 2014 when companies like Apple and Google implemented automatic enhanced encryption on mobile devices and certain communications systems. Companies using such strong encryption do not maintain \u201cback door\u201d keys and, therefore, now cannot easily unlock, or decrypt, the devices\u2014not even when presented with a valid legal order. Law enforcement concerns about the lack of back door keys were highlighted by the November and December 2015 terrorist attacks in Paris, France, and San Bernardino, CA. Questions arose as to whether the attackers used strong encryption and, more importantly, if they did, whether and how this might have hindered investigations.\nFollowing the December 2, 2015, terrorist attack in San Bernardino, CA,, U.S. investigators recovered a cell phone reportedly used by one of the shooters. Federal Bureau of Investigation (FBI) Director James B. Comey testified before Congress two months later, indicating that the Bureau was still unable to access the information on that device. On February 16, 2016, the U.S. District Court for the Central District of California ordered Apple to provide \u201creasonable technical assistance to assist law enforcement agents in obtaining access to the data\u201d on the cell phone. The order directs Apple\u2019s assistance to feature three components:\nbypass or disable the iPhone\u2019s auto-erase after 10 incorrect passcode attempts function (even if the function has not been enabled); \nenable the FBI to electronically input passcodes for testing; and \nensure there is no added delay between passcode attempts.\nThe order is not for Apple to decrypt the device itself, something which Apple has publicly stated it cannot do. Instead, this order would enable the FBI to automate the attempts of every possible passcode for the device until the right combination of characters is hit upon by pushing a software update to the iPhone in question\u2019s operating system.\nApple is contesting the order, which will require the magistrate judge, and perhaps the district and appeals courts, to assess whether the All Writs Act (28 U.S.C. \u00a71651) can be interpreted broadly to grant the relief the government seeks. The All Writs Act, enacted as part of the first Judiciary Act of 1789, provides a residual source of legal authority to federal judges to enforce the orders of their courts. Whether the All Writs Act can be read to include such an order will largely depend on two inquiries: first, whether a reviewing court would view the FBI\u2019s request as an \u201cunreasonable burden\u201d on Apple under the 1977 Supreme Court case United States v. New York Tel. Co.; and, second, whether such a command is consistent with the intent of Congress. This is a fact-intensive inquiry, the contours of which are uncertain.\nPolicymakers may ask a number of questions with respect to the order from the Central District of California and the larger ongoing encryption debate. Apple has indicated that it is possible to develop an alternate operating system for the iPhone in question that would accomplish the items in the court order. As such, a main question now is whether it should be done. Will doing so effectively create a \u201cback door\u201d to the encryption? What precedent might be set by Apple providing the court-ordered assistance? If Apple develops an alternate operating system to comply with this order, would Apple and other companies have to comply with similar requests in other law enforcement investigations? In addition, as a multinational corporation, would Apple need to comply with requests from other national governments?",
      "type": "CRS Report",
      "typeId": "REPORTS",
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      "topics": []
    }
  ],
  "topics": [
    "Intelligence and National Security"
  ]
}