Randall Samborn, Esq | March 29th, 2016

Can Apple and the FBI Stand Together Before Courts or Congress Declare a ‘Winner?’

The now-apparently-fizzled legal battle between the FBI and Apple over national security and privacy interests was, at least in my mind, something of a deadlocked conundrum. Counting myself among the millions who stuff an iPhone into a hip pocket, I felt conflicted between my libertarian streak and two decades of experience as a Justice Department attorney.
Now, after weeks of stalemate and acrimonious rhetoric, we’re told “Never mind.” But has the problem really been solved?
In the immediate instance involving the San Bernardino shooter™’s phone, the answer is, thankfully, yes. The argument that the FBI cannot lawfully get into a terror suspect™’s phone to follow leads and prevent further harm is anathema to our principles of law enforcement and homeland security. If we did not learn this lesson after 9/11, we are doomed to repeat the folly of our mistakes.
It™’s no secret, though, as FBI Director James Comey recently acknowledged, that law enforcement struggles to keep pace with technology and often lags behind. Stymied by Apple, but determined to crack the encrypted iPhone, the FBI should be commended for availing itself of less intrusive means to reach its mandated end, without forcing Apple to obey or disregard a court order. Whenever possible, government agencies should be encouraged to exhaust all other available remedies before relying on draconian measures.
Apple, to its credit, did not bend or break. It held steadfast to its principles, winning the praise and loyalty of millions of law-abiding consumers who don’t want the government, or hackers, gratuitously accessing secrets in their phones. Apple never said breaking its encryption couldn’t be done; rather, it said it would not voluntarily provide the master key. Apple can stand tall, just as the FBI now can in declining to seek victory by judicial fiat.
Apple™’s unyielding posture is not without a price, however. Now, it must account for the reality that after promoting and selling the security of its operating systems, a flaw has been exposed. The phone™’s hackability could actually turn out to be an even greater concern for Apple and its customers than the rigid stance Apple struck. In the aftermath of the stand-off, Apple said it will continue to cooperate with law enforcement, but neglected to volunteer that such “cooperation” would be only on its terms.
What we know going forward is that this showdown, while delayed, is not resolved. Technology is changing constantly; sometimes law enforcement will be ahead of the technological curve, but more often than not, it will need the assistance it sought in this case and still seeks in myriad others. Hundreds of encrypted iPhones remain in the hands of law enforcement; dozens are at the center of contention in federal courts nationwide in cases that are less visible, but no less important.
Before conflicting judicial rulings create a deeper morass, the government and Apple have a narrow window to navigate a mutual aid pact that accommodates their respective interests and needs, and, equally important, allows both sides to prevail publicly as winners. Absent such rapprochement, the courts, or perhaps Congress, will certainly tie their hands for them, an outcome that neither side is likely to view as “victory.”