Apple’s showdown with the FBI over data encryption on an iPhone belonging to San Bernardino shooter Syed Rizwan Farook could lead all the way to the Supreme Court, says Kristen Eichensehr, a visiting professor at UCLA’s School of Law whose primary area of expertise includes national security issues. Currently, Apple chief executive Timothy Cook and FBI director James Comey are at an impasse over what is at stake if the media giant writes a code to disable the iPhone feature that automatically erases content after 10 failed password attempts.
The FBI doesn’t want to lose the potentially valuable data stored in Farook’s phone leading up to the December 2 attacks at the Inland Regional Center that left 14 dead and 22 wounded. Apple doesn’t want to endanger the security and privacy of its global customer base.
On February 16, a federal judge issued an order that compelled Apple to comply with the FBI’s request. On Thursday, Apple filed a formal response that argued code, like speech, is protected by the First Amendment, and thus the company should not be forced to write anything against their will.
“This case really lays bare the security tradeoffs that are at play,” says Eichensehr. “It pits different types of security against one another. On one hand, encryption is hampering law enforcement investigations into a very tragic terrorist incident. But it is pitting that interest against securing individual communications around the world.”
Yet Apple has capitulated to demands like these before—at least 70 times, according to the Daily Beast. It wasn’t until September 2014, with the introduction of the iOS 8, that Apple announced it “would not perform data extractions in response to government search warrants.” And last week, Cook released a statement on Apple’s website calling the FBI’s request for help “an overreach.”
“This fight has announced to the world that iPhones are so secure that the government can’t get into them,” says Karen North, a psychologist and professor of digital social media at the University of Southern California’s Annenberg School.
But the average Apple customer might be wondering, What’s the big deal? Most smartphone users are probably aware that their data is already vulnerable and their movements are more or less trackable. They might rather see Apple cooperate, especially if it would help prevent another terrorist attack. Right?
“There seems to be an attitude, after 9/11, where it seems like [this] is a small price to pay to stop terrorism,” says attorney Michael Overing, an adjunct professor at Annenberg and an expert in censorship and First Amendment issues. “We’re all in agreement: Terrorism is bad. But we’re talking about a government program to obtain private data. That’s the problem. Do I think the government today is going to use my stuff in a bad way? No. I think our government is pretty benign, Democrat or Republican. But the issue with data and data retrieval is we don’t know how it’s going to be mined in the future.”
But if Apple—and Google, and Facebook, and other corporate behemoths that are currently rallying behind the house that Jobs built—already have access to so much of our information, should consumers trust them any more than they do the government? “That’s a fair question,” says Overing. “But Google wants to profit. The government wants to prosecute.”
If Apple loses, experts worry it will set a precedent that allows the government to make similar requests of other companies. In addition, Overing wonders whether it’s really necessary for the FBI to secure Apple’s cooperation, or if this case is also playing out in the court of public opinion for a reason.
“I have it on good authority that the [National Security Agency] is probably capable of writing this code,” he says. “Why wouldn’t the FBI go to the NSA? That’s the question we’re not getting an answer to. I think that’s not the fight that the government wants. The government wants to put this into the public sphere because everybody agrees what happened in San Bernardino is horrific. It’s scary beyond belief. Everybody agrees action needs to be taken. So how can you possibly argue that a telephone shouldn’t be opened up and the contents revealed? They want to make this an issue because they want to compel Apple to open a back door so that they can use it in other cases.”
Thus far, Eichensehr’s prediction that the court would see a wave of amicus briefs filed on behalf of Apple is about to come true: the New York Times reported that Microsoft, Google, Yahoo, Twitter and Facebook plan to file those briefs next week. Meanwhile, both sides have asked Congress to step in. “I think it is likely to drag out,” says Eichensehr. “It seems like whichever side loses with the magistrate is going to be appealing this up the chain.”