Apple vs the FBI: How the Case Could Play Out
Apple vs the FBI: How the Case Could Play Out

Apple is getting ready for a busy week.

On Monday, the company is holding an event at its Silicon Valley headquarters to unveil smaller versions of its iPhone and iPad Pro. Then on Tuesday, Apple will face off against the US government at a hearing in federal court in Riverside, California, over whether it must help law enforcement break into an iPhone used by a gunman in last year’s San Bernardino, California, terrorist attack.

The iPhone case has proved to be particularly divisive. According to a New York Times/CBS News poll, 50 percent of respondents said Apple should accede to the government and help unlock the iPhone, while 45 percent were opposed. Overall, people’s attitudes toward surveillance appear to have softened, with a quarter saying the federal government infringes too much on privacy, down from nearly half in a similar poll two years ago.

Katie Benner, who is covering Apple’s legal entanglements from San Francisco, and Matt Apuzzo, who covers national security from Washington, recently debated the iPhone case and what to expect from Tuesday’s hearing:

Katie Benner: Hi, Matt. What do you make of how dramatic this fight has gotten? Over the last month, each round of court filings has gotten a little testier.

Matt Apuzzo: A lot of it’s been theater, but – and here I go getting all rah-rah – it isn’t necessarily a bad thing that people are being asked to think in a really big way about law and policy. I can’t think of a case in which a novel legal argument has captured the attention of so many people. Everyone has a phone. Everyone gets this debate.

Katie: Agreed. So give us the government’s strongest arguments.

Matt: Let’s start with the weakest arguments – it’s more fun that way.

The government began by saying this case was just about opening this one iPhone. That is by far the weakest argument. Even the government has now walked away from that one. Everyone realizes this is a precedent-setting case.

On the strong argument side, the Justice Department has been unfairly mocked by some about the fact that it’s relying on a law from the 1700s – the All Writs Act – to justify opening this phone.

The fact that the law is two centuries old just tells you that it’s a core tenet of our judicial system. I think the Department of Justice has stronger footing with this than people give it credit for. The All Writs Act says that government lawyers can say, “Judge, you have the authority to enforce your own orders.” That’s not a controversial argument, on the face of it.

Katie, what are Apple’s arguments?

Katie: I’m going to answer in broad strokes because Apple’s arguments are complicated.

Essentially, Apple’s main argument is that the All Writs Act, which is used when there is a gap in the law, doesn’t permit the court to force Apple to write new code for the government. The company bolsters its position by arguing that the government’s request doesn’t even fall into a gap in existing law. Apple says that a law called the Communications Assistance for Law Enforcement Act, which broadly says when and how companies must help the government with electronic surveillance, addresses the DOJ’s request in this case. Congress has thought about adding tech companies like Apple to CALEA but decided against doing so.

Apple argues that Congress’ declining to amending that law is the same thing as saying that tech companies are exempt from the existing rule. So the All Writs Act is moot here, Apple contends.

Apple also makes constitutional arguments, including one that addresses the First Amendment. The company says that code is a form of free speech and that compelling people to write it in this case to help unlock an iPhone is infringing on their constitutional rights.

One analogy, perhaps, would be the government telling journalists to help an investigation by writing an article that includes specific elements and then publishing it on the front page. I can’t imagine a lot of journalists who would want to do that.

Matt: Well, judges try to avoid ruling on constitutional questions. My money is on the likelihood that this case will come down to the judge’s reading of the All Writs Act. There, the government argument is based on cases that long predate any of the mobile technology we have now. To make its case, the government is arguing that something like rewriting a mobile operating system today is essentially the same as leasing old-fashioned telephone wires in the 1970s.

The bigger issue here is this: Has all this modern technology made existing law obsolete? I’m not sure I buy your First Amendment comparison between writing code and writing a newspaper article only because there really is not a predigital analogy that works here.

Katie: Yes! None of the laws we have now anticipated a world in which communications could be global and completely encrypted. We need new laws, and Congress may be pressured to deliver some.

Matt: I’m not holding my breath that we get legislation out of Congress in the midst of an election cycle, with the parties so divided that they can’t consider a Supreme Court justice. Whatever we get will be imperfect, which isn’t a terrible thing. Political compromise is part of the process.

Katie: Matt, you’re such a believer in our imperfect democracy. I’m singing the national anthem in my mind.

Matt: Just hum it. We get it.

But seriously, one thing I do hear from those in federal law enforcement a lot is that they would be fine with losing the authority to search and wiretap devices like the iPhone – but only if the American people change their expectations of law enforcement.

If privacy overrides security here, a lot of agents will say fine. Just don’t expect them to prevent every attack and solve every crime. And honestly, as a country, we’ve made that decision on guns. We accept a certain amount of gun crime and resist infringement on the Second Amendment.

Let me ask you this. Do you think for Apple, the stakes really are as high as its says? We have reported that the company is already at work on a software update that would make it impossible for the government to break into a locked iPhone, even with the methods it is asking Apple about now in this case. And Apple can drag this case out for a year. The courts would not be able to keep up with the innovation.

Katie: But this is the government asking Apple to find a way to go back and weaken something iPhone security that it has already created.

If the government gets that, it could order Apple to roll back or find ways to break into any future innovation. The government might later be able to say, we need you to weaken something else, something different, because you did it before with a different now obsolete part of your system.

Matt: You are headed to the hearing on Tuesday. What scene are you expecting?

Katie: Protesters are already saying they’ll be at the courthouse. Court officials are saying they expect huge lines to get the few available seats. And supporters on all sides will probably show up. So in short: chaos.

© 2016 New York Times News Service

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Tags: Apple, Encryption, FBI, iPhone, iPhone 5c, iPhone SE, iPhone SE Specifications, Mobiles, Tim Cook

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