Toward Resolving Apple’s FBI Dispute


A version of this post titled “Unscrambling Apple’s case” originally appeared in the Cyber Saturday edition of Data Sheet, Fortune’s daily tech newsletter.

Last week I was kayaking along the Florida straits when the year’s biggest cybersecurity story—so far—broke. I’m still adjusting from tropical Keys to encryption keys.

To review: Apple and the Federal Bureau of Investigation are at a standoff over a case involving accessing data stored on a phone used by Syed Rizwan Farook, one of the San Bernardino massacrists. The FBI wants Apple to create a new software tool that would undermine the phone’s security features and help unlock its contents. My colleague (and boss) Adam Lashinsky weighed in on the matter as part of yesterday’s Data Sheet. He came down in favor of the Feds. Apple is not above the law, he reasoned; if a court has determined that Apple should help the FBI break into a terrorist’s iPhone, then the company must oblige—just as it has in past investigations. That’s that.

Yet is the law so clear? Philip Elmer De-Witt, another colleague of mine and longtime Apple devotee, alternatively pitched his support for the colossus of Cupertino. He contended, citing the the company’s 65-page motion filed Thursday, that the FBI’s request violates Apple’s First and Fifth Amendment rights by unprecedentedly forcing it write and sign deliberately weakened code it does not agree with, and that the government has no authority to compel a company to decrypt customer data when it does not possess the needed cryptographic keys. Besides, as Apple noted, Congress decided in its 1994 Communications Assistance for Law Enforcement Act that cops lack the power “to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service.” So there.

Fortune isn’t the only divided house. Bill Gates seemed to side with the FBI earlier this week, before (sort of?) walking back from the position. Microsoft (MSFT), the company he founded and continues to advise, on the other hand, voiced its full-throated support of Apple a couple days later. (A position the rest of Silicon Valley has since rallied behind.) The country is split too. A Pew Research poll and a follow-up Morning Consult poll found that the public only narrowly—a slight 51% majority, both coincidentally reported—sides with the FBI. Admittedly less scientific surveys, including Fortune’s own, seem to indicate the contrary.

For more on Apple versus FBI, watch:

The Apple (AAPL) versus FBI debate has also polarized legal experts. Some who spoke to Wired said they indeed view the government’s ask of Apple as entailing compelled speech. Another authority, Lawrence Lessig at Harvard Law School, told CNNMoney that he believes Apple will have a hard time arguing that this case is different from past ones in which it aided law enforcement—never mind that the latest circumstance involves Apple developing a crippled version of its iOS software, which could have grave implications for consumers’ security. (As National Security Agency analyst-turned-cybersecurity entrepreneur Jay Kaplan wrote in a piece contributed to Fortune this week: “If there is even a single mechanism through firmware or changes in the security architecture for the government to access encrypted information, that same ‘backdoor’ will inevitably be used for nefarious purposes and have serious long-term ramifications.”)

Most experts agree, nevertheless, that the primary component of this legal battle that will come under court review is the All Writs Act, a law as old as America and upon which the FBI’s case rests. As many commenters have pointed out, legislators approved this search warrant-executing act before humans powered the world with electricity, let alone before they had to worry about cloud computing, “smart” devices, and ubiquitous esoteric mathematical algorithms that scramble communications records. An original version of the bill passed in 1789, and the U.S. adopted its current form in 1911. Microsoft president and chief legal officer Brad Smith brazenly demonstrated just how antiquated the law is when he plopped an adding machine from the same era down on a desk during a testimony before Congress this week. His message was clear: “We need 21st century laws that address 21st century technology issues.”

Apple, of course, has the right to object to the FBI’s court order. Whichever side loses in court will no doubt appeal the ruling. If Apple fails twice to win its case, then the company is plum out of luck; the phone’s secrets will spill. If an appeals court ultimately backs Apple, then the case could end up airing before to the nation’s highest court. As Norm Pearlstine, content chief of Time Inc., Fortune’s parent, has noted: We may very well have a Supreme Court case in the making.

Thankfully, America’s founders architected the nation with a mechanism to settle such seemingly intractable disputes. Now that’s a principle of secure design.

Thanks go to my colleague Jonathan Vanian last weekend for holding down the newsletter fort in my absence. Note that he’ll be reporting on the ground at the annual RSA cybersecurity conference next week. Follow him for updates at the confab.

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