From Julian Sanchez:
Though the FBI says it has thousands of encrypted phones it would like to access in connection with criminal inquiries, it chose to pick a very public fight with Apple to test a legal strategy for compelling assistance in a uniquely high-profile case: the investigation into the December 2015 terrorist mass shooting in San Bernardino, California. Even at the time, there was little reason to think much useful evidence would be gleaned from the deceased perpetrator’s work-issued iPhone. The shooter had destroyed his personal phone, yet left the work-issued iPhone intact, and in any event, there was no indication the attack itself had been orchestrated or directed by any larger group.
Nevertheless, this was the occasion on which the FBI and Department of Justice decided to try out a novel and aggressive legal tactic: They sought and (initially) obtained an order under the All Writs Act of 1789, compelling Apple to assist the bureau in executing a lawful search warrant by writing and authenticating a custom version of the iOS operating system that, once installed on the deceased shooter’s phone, would allow investigators an unlimited number of attempts to guess his pass code. Conspicuously, the government opted not to file its application under seal, as it routinely does, and as one might expect if it were attempting to conceal the state of investigation from potential co-conspirators. When Apple exercised its legal right to push back, DOJ ratcheted up the rhetoric, blasting the company for putting its “brand marketing strategy” above the public interest in preventing lethal terrorist attacks. There was no subtlety here: DOJ lawyers clearly hoped to leverage an emotionally charged, high-profile case to set a friendly legal precedent, garnering sympathy from legislators and the public in the process.