In 2016, Tim Cook fought the law—and won.
Late in the afternoon of Tuesday, February 16, 2016, Cook and several lieutenants gathered in the “junior boardroom” on the executive floor at One Infinite Loop, Apple’s old headquarters. The company had just received a writ from a US magistrate ordering it to make specialized software that would allow the FBI to unlock an iPhone used by Syed Farook, a suspect in the San Bernardino shooting in December 2015 that left 14 people dead.
The iPhone was locked with a four-digit passcode that the FBI had been unable to crack. The FBI wanted Apple to create a special version of iOS that would accept an unlimited combination of passwords electronically, until the right one was found. The new iOS could be side-loaded onto the iPhone, leaving the data intact.
But Apple had refused. Cook and his team were convinced that a new unlocked version of iOS would be very, very dangerous. It could be misused, leaked, or stolen, and once in the wild, it could never be retrieved. It could potentially undermine the security of hundreds of millions of Apple users.
In the boardroom, Cook and his team went through the writ line by line. They needed to decide what Apple’s legal position was going to be and figure out how long they had to respond. It was a stressful, high-stakes meeting. Apple was given no warning about the writ, even though Cook, Apple’s top lawyer, Bruce Sewell, and others had been actively speaking about the case to law enforcement for weeks.
The writ “was not a simple request for assistance in a criminal case,” explained Sewell. “It was a forty-two-page pleading by the government that started out with this litany of the horrible things that had been done in San Bernardino. And then this . . . somewhat biased litany of all the times that Apple had said no to what were portrayed as very reasonable requests. So this was what, in the law, we call a speaking complaint. It was meant to from day one tell a story . . . that would get the public against Apple.”
The team came to the conclusion that the judge’s order was a PR move—a very public arm twisting to pressure Apple into complying with the FBI’s demands—and that it could be serious trouble for the company. Apple “is a famous, incredibly powerful consumer brand and we are going to be standing up against the FBI and saying in effect, ‘No, we’re not going to give you the thing that you’re looking for to try to deal with this terrorist threat,’” said Sewell.
They knew that they had to respond immediately. The writ would dominate the next day’s news, and Apple had to have a response. “Tim knew that this was a massive decision on his part,” Sewell said. It was a big moment, “a bet-the-company kind of decision.” Cook and the team stayed up all night—a straight 16 hours—working on their response. Cook already knew his position—Apple would refuse—but he wanted to know all the angles: What was Apple’s legal position? What was its legal obligation? Was this the right response? How should it sound? How should it read? What was the right tone?
Cook was very concerned about the public’s reaction and knew that one of the outcomes of his action could be that Apple would be accused of siding with terrorists. What kind of company wouldn’t help the FBI in a terrorist investigation? From a public relations standpoint, Apple had always been on the side of privacy advocates and civil libertarians. This case put the company unexpectedly on the side of a terrorist. This was brand-new territory, and Cook had to figure out how to navigate it. He had to show the world that he was advocating for user privacy rather than supporting terrorism.
At 4:30 a.m., just in time for the morning news cycle on the East Coast, Cook published an open letter to Apple customers explaining why the company would be opposing the ruling, which “threatens the security of our customers.” He referenced the danger that could come from the government having too much power: “The implications of the government’s demands are chilling,” he wrote. “If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data.”
Apple had been working with the FBI to try to unlock the phone, providing data and making engineers available, Cook explained. “But now the US government has asked us for something we simply do not have, and something we consider too dangerous to create . . . a backdoor to the iPhone.” He continued, “In the wrong hands, this software—which does not exist today—would have the potential to unlock any iPhone in someone’s physical possession.” This could have potentially disastrous consequences, leaving users powerless to stop any unwanted invasion of privacy. “The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Cook then accused the government of trying to force Apple “to hack our own users and undermine decades of security advancements that protect our customers . . . from sophisticated hackers and cybercriminals.” It would be a slippery slope from there. The government could then demand that Apple build surveillance software to intercept messages, access health records or financial data, or track users’ locations. Cook needed to draw a line. He believed the FBI’s intentions were good, but it was his responsibility to protect Apple users. “We can find no precedent for an American company being forced to expose its customers to a greater risk of attack,” he wrote. Though it was difficult for him to resist orders from the US government, and he knew he’d face backlash, he needed to take a stand.
The magistrate’s order thrust into the spotlight a long-running debate Apple had been having with the authorities about encryption. Apple and the government had been at odds for more than a year, since the debut of Apple’s encrypted operating system, iOS 8, in late 2014.
iOS 8 added much stronger encryption than had been seen before in smartphones. It encrypted all the user’s data—phone call records, messages, photos, contacts, and so on—with the user’s passcode. The encryption was so strong, not even Apple could break it. Security on earlier devices was much weaker, and there were various ways to break into them, but Apple could no longer access locked devices running iOS 8, even if law enforcement had a valid warrant. “Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company wrote on its website. “So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”
The update had repeatedly stymied investigators. At the New York press event two days after Cook’s letter on San Bernardino, the authorities said that they had been locked out of 175 iPhones in cases they were pursuing. For more than a year, law enforcement at the highest levels had been pressuring Apple for a solution. “When the FBI filed in San Bernardino, I think many people in the public perceived that as the beginning of something,” said Sewell. “Whereas in reality, it was a long point leading up to that, with a lot of activity that preceded the actual decision by [FBI director James] Comey to file.”
Sewell explained that he, Cook, and other members of Apple’s legal team had been meeting regularly with heads of the FBI, the Justice Department, and the attorney general in both Washington and Cupertino. Cook, Sewell, and others had met not only with James Comey, but also with Attorney General Eric Holder, Attorney General Loretta Lynch, FBI director Bob Mueller (Comey’s predecessor), and Deputy Attorney General Sally Yates.
Cook and Sewell met with Eric Holder and Jim Cole, then the deputy attorney general, in late 2014, and FBI agents told them they were “interested in getting access to phones on a mass basis.” This was way before the attack in San Bernardino, and Apple made it clear from the start that they were not going to grant the FBI access to hack into Apple users’ phones. Cook and Sewell told Holder and Cole that they “didn’t think that that was an appropriate request to be made of a company that has as its primary concern the protection of all citizens.” They had a similar conversation with Lynch and Yates.
Sewell said that during the discussions, it was clear that some law enforcement officials weren’t convinced by the broader social issues. Some were intellectually sympathetic to their position, but as officers of the law, they insisted they needed access to pursue cases. But Sewell said Cook stuck to his position that security and privacy was a cornerstone. Cook was adamant that any attempt to bypass security would be very dangerous. Once a backdoor had been created, it could easily be leaked, stolen, or abused.
But when the San Bernardino case came along, law enforcement saw it as an opportunity to force Apple’s hand. “There was a sense at the FBI level that this is the perfect storm,” said Sewell. “We now have a tragic situation. We have a phone. We have a dead assailant. This is the time that we’re going to push it. And that’s when the FBI decided to file [the writ ordering Apple to create a backdoor].”
As Cook and his team had predicted, the judge’s order ignited a firestorm in the media. The story dominated the news all week and would continue to be headline news for two months. Apple’s response drew strong condemnation from law enforcement, politicians, and pundits, like Democratic senator Dianne Feinstein of California, head of the US Senate Intelligence Committee, who called on Apple to help with the “terrorist attack in my state” and threatened legislation.
At a press conference in Manhattan, William Bratton, New York City police commissioner, also criticized Apple’s policy. He held up a phone involved in a separate investigation of the shooting of two police officers. “Despite having a court order, we cannot access this iPhone,” he told the assembled journalists. “Two of my officers were shot, [and] impeding that case going forward is our inability to get into this device.”
A few days later, Donald Trump, then a presidential candidate, called for a boycott against Apple at a campaign rally in Pawleys Island, South Carolina. Trump even accused Cook of being politically motivated: “Tim Cook is looking to do a big number, probably to show how liberal he is.” Trump was playing to his conservative audience, trying to make Cook seem like a liberal bad guy and using scare tactics to make it seem like Apple was siding with terrorists. He tweeted further attacks on Apple, calling again for a boycott until the company handed over the information to the FBI.
With so many politicians and officials against Apple, the American public lined up against it, too. A Pew survey found that 51 percent of people said Apple should unlock the iPhone to help the FBI, with only 38 percent supporting Cook’s position. But a few days later, another poll by Reuters/ Ipsos came to a different conclusion. According to that poll, 46 percent agreed with Apple’s stance, 35 percent disagreed, and 20 percent didn’t know. The difference was attributed to the phrasing of the question: The Pew survey question gave less information about Apple’s position and appeared to be biased toward the FBI. An analysis of the emojis used in social media came to a similar mixed conclusion. By analyzing positive and negative emojis in people’s tweets (smiley faces, frowns, claps, thumbs up, and thumbs down), a marketing firm called Convince & Convert found a fairly even split between those who sided with Apple and those who supported the FBI. Though this approach was less than scientific, it was clear the public was divided. This experience was unprecedented, and many did not know what to think.
And ultimately, it wasn’t all bad. Cook’s stance also appeared to have some influence on public opinion. In hundreds of responses to Trump’s tweets, lots of citizens defended Apple’s actions. Trump’s tweets tended to bring out contrarian opinions, but most reactions tended toward defenses of Apple. One responder tweeted, “Boycotting Apple products is absurd. Break into one phone, none of us will have privacy. The govt can’t be trusted!!” Several high-profile figures also voiced support for Cook and Apple, including Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, Twitter CEO Jack Dorsey, and Edward Snowden, the NSA whistleblower. The New York Times editorial board also weighed in on Apple’s side. In an editorial titled “Why Apple Is Right to Challenge an Order to Help the F.B.I.,” they wrote, “There’s a very good chance that such a law, intended to ease the job of law enforcement, would make private citizens, businesses and the government itself far less secure.” Cook and his team obviously agreed, and hunkered down to continue the fight.
The War Room
For the next two months, the executive floor at One Infinite Loop turned into a 24/7 situation room, with staffers sending out messages and responding to journalists’ queries. One PR rep said that they were sometimes sending out multiple updates a day with up to 700 journalists cc’d on the emails. This is in stark contrast to Apple’s usual PR strategy, which consists of occasional press releases and routinely ignoring reporters’ calls and emails.
Cook also felt he had to rally the troops, to keep morale high at a time when the company was under attack. In an email to Apple employees, titled “Thank you for your support,” he wrote, “This case is about much more than a single phone or a single investigation.” He continued, “At stake is the data security of hundreds of millions of law-abiding people and setting a dangerous precedent that threatens everyone’s civil liberties.” It worked. Apple employees trusted their leader to make the decision that was right not only for them but also for the general public.
Cook was very concerned about how Apple would be perceived throughout this media firestorm. He wanted very much to use it as an opportunity to educate the public about personal security, privacy, and encryption. “I think a lot of reporters saw a new version, a new face of Apple,” said the PR person, who asked to remain anonymous. “And it was Tim’s decision to act in this fashion. Very different from what we have done in the past. We were sometimes sending out emails to reporters three times a day on keeping them updated.”
Outside Apple’s walls, Cook went on a charm offensive. Eight days after publishing his privacy letter, he sat down for a prime-time interview with ABC News. Sitting in his office at One Infinite Loop, he sincerely explained Apple’s position. It was the “most important [interview] he’s given as Apple’s CEO,” said the Washington Post. “Cook responded to questions with a raw conviction that was even more emphatic than usual,” wrote the paper. “He used sharp and soaring language, calling the request the ‘software equivalent of cancer’ and talking about ‘fundamental’ civil liberties.
He said he was prepared to take the fight all the way to the Supreme Court.” It was clear that Apple’s leader wouldn’t back down from his beliefs, even when things got really tough.
The interview went well, and back at Apple’s HQ, staffers in the war room felt it was a pivotal point. They thought Cook did a great job not only explaining Apple’s point of view but also showing the world that he was a compassionate, ethical leader whom users could trust to maintain their privacy. “This is not a rapacious corporate executive who’s out to make a bunch of money,” said Sewell. “This is somebody who you could trust. Somebody who does what he says he’s going to do. And doesn’t do things that are malicious or that are ill-intentioned but tries to be fair, tries to be a good steward of the company and means what he says and does things that he believes in.”
Apple employees had known this side of Tim Cook for many years, but the public was getting a glimpse for the first time. This was a victory for Apple, since many members of the public did not initially approve of Apple’s decision to keep iPhone information away from the FBI. Apple won another victory at the end of February, when a court in New York rejected an FBI request to order Apple to open the phone of a minor drug dealer. Judge James Orenstein agreed with Apple’s position that the All Writs Act could not be used to order the company to open its products. “The implications of the government’s position are so far-reaching—both in terms of what it would allow today and what it implies about Congressional intent
in 1789,” he said.
Although this particular case wasn’t binding on the court in San Bernardino, Sewell said it gave the company much-needed ammunition with the press. “For us it was very, very important,” he said. “It enabled us to then go back to the press and go back to people who had generally been detractors and say, ‘This isn’t about Apple commercialism. This isn’t about Apple being a bad actor. This is a principled position and the only judge in the country that’s looked at this agreed with us.’” Cook and Sewell felt confident that with Judge Orenstein on their side, others would soon be, too.
No Privacy in America
As the battle raged on, support from privacy advocates grew, but public opinion on Apple’s decision was still largely divided. An NBC survey of 1,000 Americans conducted in March 2016 found that 47 percent of respondents believed the company should not cooperate with the FBI, while 42 percent believed it should. Forty-four percent of respondents said they feared the government would go too far and violate the privacy of its citizens if Apple were to meet its demands.
The United Nations voiced its support for Apple, with special rapporteur David Kaye arguing that encryption is “fundamental to the exercise of freedom of opinion and expression in the digital age.” Kaye continued by stating that the FBI’s “order implicates the security, and thus the freedom of expression, of unknown but likely vast numbers of people, those who rely on secure communications.” But the FBI continued its PR offensive, with then director James Comey telling attendees at a Boston College conference on cybersecurity in March that “there is no place outside of judicial reach. . . . There is no such thing as absolute privacy in America.”
The lowest point for Apple was when Attorney General Loretta Lynch criticized the company during a keynote speech at the security-oriented RSA Conference in San Francisco. Lynch essentially accused Apple of defying the law and the courts. Her comments were widely reported and featured on the evening news. “Nothing could be further from the truth,” Sewell said. “For the attorney general to go on public television and say, ‘Apple is in breach of a court order and is therefore acting unlawfully,’ is inflammatory. . . . A lot of media picked up this as the attorney general saying that Apple is . . . disregarding a court order. But there was no court order.” The judge’s writ requested Apple’s help in the case; it did not compel the company to do so, a distinction that was lost—or ignored—by many critics. Apple wasn’t breaking any laws, and it was determined to fight for user privacy, despite lots of pressure from the government.
The Case Is Dropped
Six weeks after the judge filed the motion against Apple, on March 28, Sewell and the legal team flew down to San Bernardino to argue their case before the judge. Cook was preparing to fly down the next day to testify.
But that evening, the FBI backed down, asking the court to indefinitely suspend the proceedings against Apple. The FBI said it had successfully accessed the data stored on the phone, though it didn’t explain how. It was later revealed that the FBI had gained access to Farook’s iPhone with the help of Israeli phone forensics company Celebrite. At a Senate Judiciary hearing in May, Senator Dianne Feinstein revealed that it had cost the FBI $900,000. Officials had previously admitted that the FBI didn’t find any information they didn’t already have, and no evidence of contacts with ISIS or other supporters. The FBI had to drop the fight with Apple, Sewell explained, because its entire position was that it couldn’t access the iPhone without Apple’s help. When it turned out that they could in fact access the phone, the case collapsed.
Privacy advocates celebrated the end of the case and Apple’s apparent victory. “The FBI’s credibility just hit a new low,” said Evan Greer, campaign director for Fight for the Future, an activist group that promotes online privacy. “They repeatedly lied to the court and the public in pursuit of a dangerous precedent that would have made all of us less safe. Fortunately, internet users mobilized quickly and powerfully to educate the public about the dangers of backdoors, and together we forced the government to back down.”
But Cook was personally disappointed that the case didn’t come to trial. Even though Apple had “won” and wouldn’t be forced to create the backdoor, nothing had really been resolved. “Tim was a little disappointed that we didn’t get a resolution,” said Sewell. He “really felt it would have been fair and it would have been appropriate for us to have tested these theories in court. . . . [Though] the situation that was left at the end of that was not a bad one for us, he would have preferred to go ahead and try the case.” The issue remains unresolved to this day. It could be reawakened at any time, and under the Trump administration it is probably likely to be. It was just another skirmish in the war for privacy and security, and as technology evolves, the battle is likely to erupt again in the future.
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