Ready to rumble: Apple vs. FBI

Lisa Sotto, managing partner, Hunton & Williams
Lisa Sotto, managing partner, Hunton & Williams

Let's get ready to ruuuummmmmbbbble! In this corner, we have the Justice Department, the prosecutorial arm of the U.S. government and, in its own words, defender of the people. And, in the other corner, we have the darling of Silicon Valley, a self-billed “true American company,” Apple.

In what promises to be a battle of epic proportions (think Godzilla vs. King Kong, Muhammad Ali vs. Joe Frazier, The Rock vs. Hulk Hogan) the two giants are squaring off over the fate of an iPhone 5c. To the winner goes the spoils! But, of course, in this case, the spoils are much more than the iPhone at the heart of this legendary showdown.

The outcome of this fight – one that observers expect will make its way to the biggest ring of them all, the Supreme Court of the United States – will have long-lasting influence on privacy and more clearly define the boundaries of governmental reach.

It may also finally prompt a sluggish Congress to break its gridlock and craft overarching encryption and surveillance legislation.

“It should never have escalated to this, privacy should have been addressed,” says Lisa Sotto, managing partner in the New York office of Hunton & Williams, who focuses on privacy and cybersecurity issues. The government, she contends, should have “worked with tech companies to craft policies and processes.”

But escalated it has into what Justin Harvey (left), chief security officer for Fidelis Cybersecurity, calls “a landmark case,” noting that he is “aware of people getting compelled to unlock a phone, but I've never heard of a manufacturer being ordered to decrypt something by court order.”

Why the government and Apple squared off over this particular case is puzzling to more than a few observers – with some curious as to why Apple drew a firm line after years of compliance with similar government requests and others equally curious as to why the FBI is pushing against that line. Hard. 

But most believe the time is simply right, with many pointing to a confluence of events and undercurrents that have brought Apple and the FBI to an inevitable confrontation: A terrorist attack on U.S. soil by husband/wife team Syed Rizwan Farook and Tasheen Malik that followed close on the heels of the horrifying attacks in Paris has lent a sense of urgency to pending investigations. An FBI worried about the rise of homegrown terrorists adept at using technology to communicate and “going dark” to evade detection and relying on a law, the All Writs Act, that's more than 225 years old, as broad authority to demand tech companies provide access to data locked in iPhones and other smart devices. A post-Snowden world that finds companies once perceived as working too closely with government, now trying to rehabilitate their images with consumers. The rise of smart devices as the “footlockers” (according to the Supreme Court) of their owners' personal lives.

In the years since Edward Snowden unleashed documents pilfered from the National Security Agency (NSA) that revealed the extent of NSA surveillance of U.S. citizens and a certain complicity between government investigators and Silicon Valley companies, Apple, Google, Twitter, AT&T and the like have spent a lot of time and effort distancing themselves from those ignominious revelations and shining light – through transparency reports and other initiatives – on government data requests. 

Those companies have tried to extricate themselves from the surveillance business by putting more control over the contents of smartphones and other devices squarely in the hands of users by adding encryption, passcodes, biometrics and a kill feature – like the one activated on Farook's phone that wipes the device clean after a certain number of unsuccessful passcode attempts (in this case, 10). 

Add to that a gridlocked Congress – that has contributed to the blurring lines owing to its inability to produce definitive legislation – and you have the cliché commonly referred to as a perfect storm. Whatever the circumstances that led to the tense standoff, the FBI/Apple conflict in San Bernardino likely will become a test case for the FBI as to how far it can push tech companies to build backdoors into their products to aid the agency in the investigation of terrorists and other criminals. And, depending on which way the decisions go (decisions plural because this case is likely to go through many phases before potentially being settled by the Supreme Court), it could become known in the annals of history as the time Apple spurned the advances of federal prosecutors and struck a blow for digital rights.

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