Friday, October 28, 2016

Viewpoint: How probable is Apple in resisting the FBI court-order to succeed?

I laid out the three reasons I believe Apple is right to stand firm on encryption back in November. The tl;dr version was in the summary.

So weakening encryption would mean sacrificing core principles of civilized societies in the name of security. It would provide not just our own government but foreign governments and criminals with access to our data. And it would do absolutely nothing to prevent terrorists from communicating in secret.

Gratifyingly, 93% of you agreed with me. But much as you and I both think Apple is right, the company now appears to be in an extremely tricky position. Not only does it have a court order instructing it to assist the FBI in breaking into one specific phone, but it appears very likely that it has the technical ability to comply with this order.

Tim Cook currently remains defiant, but how likely is it that Apple could succeed in fighting the order … ?

I spoke about the case with a retired lawyer friend, Gene Rankin, former Director of the Wisconsin Supreme Court Board of Bar Examiners. He could see two possible arguments Apple could make in an application to reverse the court order.

First, the general principle, much as I outlined it in my opinion piece. That the harm to the many by compromising iPhone security outweighs the good of gathering evidence in one specific case.

Second, that Apple was only ordered to provide all “reasonable” technical assistance, and that having to create a custom version of iPhone firmware to permit access to a single device is not reasonable.

The FBI may also have weakened its case by insisting that it is not asking Apple to create a generic backdoor to iPhones, merely assist in accessing just one phone. That would strengthen Apple’s argument that the work involved would be unduly burdensome.

The irony here, of course, is that if the FBI did prevail, we can be certain in would be back next time arguing that since Apple already created the compromised firmware – and there is now legal precedent – it should help break into other iPhones. Which is the problem with this type of case. Despite my general views, I do, in the specific case of the San Bernardino shootings, find myself in sympathy with the FBI. But I consider the broader principle more important.

Depressingly, Rankin’s view is that Apple’s attempt to fight the court order is unlikely to be successful. This is a high-profile terrorism case where the FBI could argue that it is reasonable to expect Apple to devote significant resources to providing assistance.

But the other factor I could see weighing in is the response – or lack of one – from the rest of the tech industry. While the judiciary is theoretically independent, judges are not blind to the direction in which political winds are blowing. If other large tech companies like Google and Microsoft came out in strong support of Apple’s position, that may well help persuade the court that the position is a reasonable one.

So far, the signs of that happening aren’t good. Blackberry’s CEO made his position clear back in December, and there has been a distinct lack of response to Cook’s letter from the rest of the tech industry. Android phones are encrypted in a similar way to iPhones, so Google clearly supports encryption in principle, but we don’t know the company’s attitude to a specific situation like this one.

Or perhaps we do. It seems notable to me that the FBI is seeking to force Apple to break into the phone of only one of the two perpetrators. Why not both? A likely explanation is that the other shooter used an Android phone and that Google voluntarily cooperated with the FBI in helping it gain access.

All of which leaves me feeling pessimistic about Apple’s chances here.

But I’m not a lawyer. There are plenty of those available, and Apple can certainly afford the best. Cook’s bold response also makes it clear that he is likely to fight this one all the way to the Supreme Court if necessary. And that, just at the moment, makes for a rather unpredictable forum! So we’ll see …

You can follow on Twitter or join our Facebook page to keep yourself updated on all the latest from Apple and the Web.