Could Apple's Saving Grace Be Found In Intellectual Property Law?

February 24, 2016

If the court order compelling Apple to assist with overriding iPhone security measures should be appealed, or if effort by Apple should fail for whatever reason, could Apple protect their software rights from infringement by the government through intellectual property law?  On the 16th of February 2016 Federal Magistrate Judge Sheri Pym presiding over United States District Court for the Central District of California issued an order compelling Apple to reasonably assist the United States Federal Bureau of Investigation (FBI) with unlocking an iPhone recovered during a lawful search related to the San Bernadino, California terrorist attack in December of 2015.
The order was given pursuant to the All Writs Act of 1789 which states “(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.  (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
The District Court’s order compels Apple to provide reasonable technical assistance by (1)  implementing a bypass or disabling the auto-erase function on the device, (2)  enabling the FBI to submit passcodes to the device for testing electronically through the physical device’s port, Bluetooth, Wi-Fi, or other protocol available, and (3)  ensuring that when the FBI submits passcodes to the device, the software running on the device will not purposefully introduce additional delays.  Essentially, the court is ordering Apple to help circumvent the iPhone’s security measures through rewriting their software.
The court proposes that Apple’s compliance “may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File (“SIF”) that can be loaded onto the device.  The SIF will load and run from Random Access Memory and will not modify the iOS on the actual phone, the user data partition or system partition on the device’s flash memory.  The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the device.  The SIF will be loaded via Device Firmware Upgrade (“DFU”) mode, recovery mode, or other applicable mode available to the FBI.  Once active on the device, the SIF will accomplish the three functions specified in paragraph 2.  The SIF will be loaded on the device at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the device through a computer allowing the government to conduct passcode recovery analysis.”
It should be noted, however, that this order is entirely hypothetical, meaning that the software code and methodology ordered by the court have not been created.  The District Court is not certain that its order is a viable option (giving Apple an out if it not possible), and Apple is vehemently opposed to the order as a whole.  In a letter to its customers Apple stated, “It would be wrong to intentionally weaken our products with a government-ordered backdoor.  If we lose control of our data, we put both our privacy and our safety at risk.”
However, this order raises the question of why the government chooses not to produce its own backdoor through the creation and implementation of their own hypothetical software.

Assuming that the government could create such software, could they legally circumvent Apple’s software or would it be barred under a different United States law, perhaps intellectual property law?

Looking at copyright law for example, it appears that the United States Government could create software without fear of an injunction, however, the copying would still be considered an infringement.  According to 28 U.S.C. 1498 (b) the remedies for an entity who has had their copyright infringed upon by the United States government are limited.  “Whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims[not a district court] for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code.” The exclusive action allowed under this statute would allow Apple to bring suit, but ultimately would not stop the government from use of the copyrighted code.  Thus, the ends they are trying to reach would not be covered under this provision.  If the District Court’s order stands, the technology community might look to what remedies can be found throughout the law, thinking outside the box in the most creative of ways, as the United States Department of Justice has done in using the All Writs Act.