New York Times | 02.18.16
D&S Advisor Joel Reidenberg considers the scope of the court order compelling Apple to provide “reasonable technical assistance” to help the government hack into one of the San Bernadino attacker’s locked iPhone.
In short, for government to legitimately circumvent device encryption through a court order, legal authorization to access the contents of the device (typically through a judicial warrant) is necessary. Then, if the equipment manufacturer has control over the encryption, the decryption should be performed by the manufacturer with the results provided to the government.
If, instead, the equipment manufacturer only has control over information necessary to decrypt the device, the information should be provided to the government under strict court seal and supervision for a one-time limited use.
If neither circumstance applies, then unless Congress says otherwise, the equipment manufacturer should not be compelled to assist.
The bottom line is that the government should have an ability to compel companies to unlock encrypted devices for access to evidence of crimes, but should not be able to force companies to build electronic skeleton keys, new access tools and security vulnerabilities.