Who will Ultimately Win in the FBI’s Standoff with the Software Industry?

The Justice Department set off a huge public debate earlier this year when it sought court intervention to force Apple to assist law enforcement in unlocking an iPhone that belonged to one of the San Bernardino terrorists, and the issue is of particular interest to members of the software industry here in Silicon Valley, where there is tremendous pro-Apple support.  In fact, it is difficult to go anywhere in Silicon Valley as a technology lawyer without being asked about the case.

However, since the case first became news,  it’s become more clear that, contrary to the initial reporting on the case, the government’s fight does in fact go beyond just this one case with Apple, and that winning the legal battle, should the Justice Department be able to do so, may not succeed in achieve the intended result.

According to Tech Crunch’s reporting on the case, a court order was filed on February 16 requiring Apple to create the software necessary to unlock the iPhone and that “within hours the court had granted the request.”  The government relies on a 227 year old law, the All Writ’s Act of 1789, as the basis for its legal argument.  Popular Mechanics explains the government’s argument in this article.

Apple then decided to fight back by disputing that the All Writs Act gives the government the authority to compel Apple to act in this case and by raising a very public Free Speech challenge to the Court.   The New York Times reported that the FBI has used the All Writs Act to successfully obtain data in the past from Apple, but that Apple is arguing that the difference in this case is that the government is trying to use the power to compel the provision of decryption services.  In other words, the argument is that government wants to conscript a private business into the performance of services against its will.  The New York Times further explained the First Amendment argument that Apple is articulating, explaining that the precedent is a Northern District of California case decided in 1996, which agreed that a UC Berkeley graduate student’s code was speech and protected by the First Amendment.  Forbes reports that Apple also cites Universal City Studios Inc. vs. Corley, a case in which magazine publisher Eric Corley published DeCSS, a program that permitted people to decrypt DVD content, and the Second Circuit U.S. Court of Appeals ruled that computer programs and code are a form of protected speech under the First Amendment.

An impressive number of amicus briefs have been filed in support of Apple’s position, which have been made available for public viewing by Apple on its website.

While the government’s request was initially reported as an “isolated case”, it has since become apparent that the case was not really  so isolated.  CNN reported that Apple is in fact being pressured by federal law enforcement to hack iPhones in at least thirteen different cases across the country.  Moreover, as reported by CNN,  it came to light that the government had previously launched a second court case over the same issue, when the New York judge assigned to the case ruled against the government that the All Writs Act could not be used to force Apple to unlock a specific device.  The Verge explains that while the ruling will not be precedent on the California case, it does give Apple a stronger argument to appeal any ruling that would go against the company and it “illustrates the dangers of trying similar cases in different courts simultaneously.”  According to The Verge report, a key difference between the two cases was the “specificity of the request” since whereas the New York case only requested general assistance in unlocking the phone, the California case detailed “extensive specifications” for how to break the lockscreen protections.

In addition to the New York case, The New York Times is reporting that the Justice Department is right now considering taking legal action against WhatsApp, which is owned by Facebook, over yet another encryption issue, in which a federal judge had approved a wiretap, but the criminal investigation was thwarted by encryption in the application.  According to The New York Times, the circumstances surrounding the WhatsApp dispute are even more significant as unbreakable encryption would put the “future of wiretapping” at risk.

When looking at the encryption standoff in its totality, it’s hard not to wonder why the federal government ever thought it was a good strategy to go to the courts with this fight instead of continuing to keep the issue out of the press.  Despite the fact that the California case is dealing with the aftermath of a terrorist attack that arose on California soil, Apple remains today an incredibly popular company which is incredibly skilled at conducting a masterful P.R. campaign.  Apple’s use of this controversy to harness public support for the company has been nothing short of brilliant.  While certainly the American public favors the government taking actions to defeat terrorism, there also remains a general fear of government overreach that began with the last Bush administration and intensified with the Snowden revelations.  As the New York Times observed, the debate that the government initiated by launching a court battle over the issue is probably not exactly what “Mr. Obama had in mind.” Even if the government were to achieve a legal victory in this matter, which seems perhaps less certain now after the New York ruling,  the public relations victory seems to  have already been won by Apple.  Moreover, it’s hard to accept the argument that the government had no other possible course of action, when once this matter was made public, it was reported by multiple news outlets that John McAfee publicly offered to encrypt the iPhone for free.  It seems like the country would have been much better served by the government making a more effective effort to decrypt the iPhone on its own without resorting to compelling a third party to act on its behalf.

To make matters worse, the engineering community is already publicly discussing a Plan B of simply not cooperating with the government even if it wins.  The New York Times reported this week that Apple employees are contemplating the possibility of “quitting their jobs” rather than undermining “the security of the software.”  Given the unpopularity of the government action in this standoff within the software industry and the high demand for engineers with the skills to do the development work in question, taking such an action would be unlikely to harm their careers.  As The Verge reported, such an act of rebellion could “make the FBI’s goal nearly impossible to achieve.”

All in all, it seems hard to see how the government really comes out ahead in this controversy.  The wisest course of action might very well be for the Department of Justice to swallow its pride, accept third party help, and move on.  There is no question that such a next step would the more prudent use of limited taxpayer dollars.  But since when has the current administration ever been judicious with taxpayer dollars?