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.
Apple-FBI Wrangle Over Unlocking iPhone Strays Into Political Polemic
He described the tactics used by the team from the other company with whom he was negotiating as, “if you can’t convince ‘em, confuse ‘em.”
Because it’s now fighting a political fight, reliance on actual facts isn’t necessary or even beneficial for Apple. This is why the company is taking on a posture as the great protector of everyone’s rights when it claims that its refusal to help the FBI extract information from an iPhone used by a terrorist is really a First Amendment issue.
This is also why I’m getting a flood of emails from clueless PR representatives informing me that Microsoft co-founder Bill Gates of all people doesn’t understand encryption, or how the current court order is really an assault on freedom or how encryption is a basic human right.
So I think the time has come to recognize what’s really going on here. As is frequently the case with anything that involves Washington, it’s not necessarily what first meets the eye.
This is not a battle by the FBI seeking to challenge someone’s ability to use encryption. While the agency would obviously prefer that people didn’t, this isn’t today’s battle. Today it’s about getting to potentially critical information on a locked cell phone.
This is also not a battle about human rights or Constitutional rights. Judges have the right to issue court orders and it has been a law in this country for a very long time. The fact that the law is old does not make it less relevant in a case about mobile device encryption. The law is technology neutral.
What’s really happened is that Tim Cook picked the wrong battle to fight. The chances of success in fighting to keep facts about a dead terrorist private are slim or worse. Dead people don’t normally have privacy rights and even if they did, the device in question wasn’t owned by the terrorist in question.
However, Apple’s attempt to divert attention through confusion is made more credible by the government itself when someone clearly lied when saying that the request to get information left behind by Syed Farook was a one-time event. The government clearly had more demands lined up and waiting in the wings.
This situation has reached the point at which it’s almost a side issue whether the government actually finds anything on Farook’s phone. Now it has devolved into an exercise in political theater. The facts have long vanished and all that’s left are empty assertions by both sides. Sadly, you won’t hear the last of this for a while, but at least you’ll know that any actual relevance to technology or personal privacy has now vanished. Perhaps now we can change the channel.