If you ever wondered whether Apple was waging a political battle while the government was waging a legal battle in its effort to gain access to a terrorist’s cell phone, the events of this week make it clear.
The reasons, of course, are also clear. Apple believes it has a better chance of prevailing in its battle with the Federal Bureau of Investigation if it does an end run around the courts.
While Apple’s strategy might have a better chance of success than fighting a purely legal battle, it’s still risky for the computer maker. On the other hand, the fight that’s now taking place is also risky for the FBI and the U.S. Department of Justice. Before this is over, they could all be losers.
While Apple CEO Tim Cook is betting that he can convince enough members of Congress to create a study commission and delay any further action, Apple doesn’t have enough members of Congress in its pocket to ensure that its view will come out on top.
Worse, the simple mention of terrorism is enough to convince many in Congress to vote for whatever the government wants. This means that Apple’s hoped-for commission might well end up deciding to recommend an end to encrypted phones or it might recommend legislation that mandates cooperation with law enforcement.
Meanwhile, the actions of the Department of Justice could easily make encryption even stronger than it is now. According to a story in Reuters Apple is planning to make its encryption strong enough that breaking into it is essentially impossible. This stronger encryption is partly brought on by revelations that the DoJ has another nine cases in which it wants Apple to bypass its protections.
What this looks like to an outside observer is that the DoJ isn’t telling the truth when it says that it’s only asking Apple to open one phone. If these stories are true, then Apple’s assertion that helping the FBI with just one phone will lead to a steady stream of demands might be right, despite assurances from the government.
Apple, meanwhile, is trying to cast its battle into something it’s not. While the FBI has made it clear that it does not love encryption, what the agency is asking for is not a key to break the encryption on iPhones. It’s looking for a way to find the passcode on just one iPhone. But because this demand actually looks pretty reasonable, Apple is trying to divert the issue into something that the masses can seize upon and get behind.
In this, I’m reminded of a story my father told me one day not long before he died. He came home from a dinner meeting, clearly frustrated. He explained that he’d spent the evening trying to keep a discussion that should have been focused on engineering from diverging into marketing.