Apple Stared Down The FBI And The FBI Just Blinked

In the case of FBI v. Apple, a hearing was scheduled for Tuesday, March 22, 2016. Late on Monday afternoon, the government requested a postponement. I predict that this case is over. Here’s why.

1) The FBI saw the San Bernardino shooting as the perfect case for gaining a preferable legal ruling of their use of the All Writs Act.

2) The government picked the case, made it public and then aggressively took their case before both the public and Congress. Considering that the case dealt with a very recent, and very deadly, terroristic attack, I think the FBI was confident that they would win the public relations battle, perhaps win favorable legislation from Congress and most probably obtain a favorable legal precedent from the courts. They were wrong on all counts.

3) A hearing had been scheduled for Tuesday, March 22, 2016. Late Monday afternoon, the FBI went to the Judge and suggested that an outside party had shown them a possible new method for obtaining information from the iPhone without Apple’s assistance. They requested additional time to explore this option. The judge granted their request.

4) The government’s claim that there might be another way to obtain information from the phone was completely contrary to what the FBI had been saying over and over again in their Pleadings. The FBI had, in fact, steadfastly insisted that Apple, and only Apple, could gain access to the contents of the phone. That was the foundation of their case.

5) In addition to granting the government’s request for a delay, Judge Pym put an indefinite stay on her order. In other words, she put her order on hold — possibly forever. At the urging of the government, the Judge scheduled an evidentiary hearing for April 5, 2016.


Here’s my take. Apple can’t say this, but I can.

What’s going to happen is, on April 5, the government is going to give a status report and — surprise, surprise — they’re going to announce that they have miraculously found another way into the iPhone in question and the government won’t be needing Apple’s assistance after all. ((At least not for now.)) The case will, for all intents and purposes, be over.

The FBI went eyeball to eyeball with Apple and the FBI blinked first. The FBI realized that they were about to lose and perhaps lose badly. Rather than risk generating an unfavorable precedent, they will simply declare victory and then get the heck out.

None of this has happened yet. Barring further developments, I’m predicting that it will.

Published by

John Kirk

John R. Kirk is a recovering attorney. He has also worked as a financial advisor and a business coach. His love affair with computing started with his purchase of the original Mac in 1985. His primary interest is the field of personal computing (which includes phones, tablets, notebooks and desktops) and his primary focus is on long-term business strategies: What makes a company unique; How do those unique qualities aid or inhibit the success of the company; and why don’t (or can’t) other companies adopt the successful attributes of their competitors?

26 thoughts on “Apple Stared Down The FBI And The FBI Just Blinked”

  1. For proponents of encryption to ensure security and privacy, would you envision the present need for future legislation beyond CALEA in order to further preserve these values both for US citizens and the wider world?

    1. “would you envision the present need for future legislation beyond CALEA in order to further preserve (encryption)…”

      No, it’s kind of the other way around. CALEA already protects encryption. Law enforcement was unable to get the protections provided in CALEA removed, so they tried to make an end run around the legislature by getting the courts to authorize what Congress would not.

      Is encryption safe? I don’t believe that for a second. Law enforcement thought that they would have public opinion on their side. That’s why they choose this emotionally charged shooting as a test case. Now that they’re realized their mistake, they will make future attempts, but they will make them in secret, hidden behind the veil of National Security.

  2. My guess, John, is that the NSA got involved and said they could help crack it, and told the FBI to knock it off, because they will force Apple’s hand in making iPhones unbreakable by even Apple itself. It’s probably too late for that, as Apple is reportedly already looking into individual private key encryption for each iPhone, much like the PGP model.

    1. My guess is that NSA could always crack the phone, but the FBI wanted to obtain a favorable legal precedent. When the case didn’t go as they expected, lots of pressure was put on them to stop their very public attempts to break Apple’s encryption because their efforts were proving counterproductive.

      As you say, I think this matter badly backfired because most everyone who uses encryption is now accelerating their efforts to make “warrant proof” phones — phones that they, themselves, have no power to decipher.

  3. Sorry to disagree with others’ optimistic assessments.

    I think the FBI played Apple and Congress ‘like a fiddle’. The FBI case provided motivation for new legislation and even moved Tim Cook to ask for it!

    Now we wait to see what gets made into law. Today, it seems like the Feinstein bill will empower courts to direct companies to deliver evidence to law enforcers as the court sees fit. This seems like exactly the law the FBI wants.

    Apple and Congress have been handled with invisible strings. (I hope this doesn’t turn out to be the end of trusted US Encryption.)

    1. Well, I most definitely agree with you that new legislation was one of the goals of this action. And if the FBI gets favorable legislation, then yes, they absolutely won.

      But I’m not at all certain that they will get the legislation they desire. They thought the case would isolate Apple. Far more people rallied behind Apple than they expected.

  4. Okay, but now Apple is reportedly asking the judge to compel the FBI to tell Apple what method will have been used to break the into the iPhone if they are successful. How likely is that to happen? On the surface that sounds incredulous if not a bit ironic. The FBI could say that Apple had the chance to be in control of the process, but since they abrogated that opportunity they should get nothing.

    And that whole discussion is why I heard the NSA did NOT want to help the FBI.


    1. “now Apple is reportedly asking the judge to compel the FBI to tell Apple what method will have been used to break the into the iPhone”

      I very much doubt they’re doing any such thing, at least until after the April 5 hearing. Let’s wait for the to play out a little bit before we speculate on it.

  5. I don’t care who blinked, I care for what is just. As part of your recovery program, you should too. 🙂

      1. I don’t think the author would take offense. If he does, I’m sorry for his feelings, not my words. This is too important to be spoken and thought about than using sports terms.

    1. If you want ‘what is just’, then you will be waiting a very long time. A win for any side does not make it a ‘just’ win. Especially, since this ‘thing’ going on has those for, and those against. It’s a Roe vs. Wade, have the courts rule it and it becomes a sticky mess for decades. That’s why Apple wants to take it to have a legislative process, that is what should have happened with Roe Vs. Wade.

      1. Just as I wouldn’t want an Apple case to be unduly influential over Roe vs. Wade, I also don’t want it to be over 4th Amendment rights. I really don’t care what Apple wants in this, or any, case, or any other corporation for that matter. That would be true if even my interests were specifically (narrowly) aligned with the case at hand. Corporations look after their own interests.

        I have nothing but contempt for Citizen’s United, and no, I do not recognized corporations as having ‘rights’. People, have rights.

        This is nearing an end, so I will finally speak up on my perception of Apple’s motives. They need a secure as possible environment to support Apple Pay, online banking, Healthkit, etc. You know, ‘take over the world’ stuff. Fine. There is a point where society’s interests conflict with Apple’s.

        Finding that point, in a just way, is the job of lawmakers and the courts.
        The hypocrisy of pointing out their First Amendment rights when they themselves violate their user’s 1st Amendment Rights, (at least in spirit, if not the letter) kills any credibility they have in my eyes of promoting a noble cause.

        This is why I actually leave them out of it. This matter should be discussed on a societal level, not a corporate one.

      1. I think the just outcome is being reached. There is a law, it’s CALEA.
        Do I think CALEA is just? Probably not, though I’m not absolute on this, I generally don’t like exemptions. If you need exemptions, there’s probably something wrong with the equitability of the law.

        An even more just outcome would be for COngress and the courts to clarify these Bill of Rights issues as they apply to these cases. I know I’m dead wrong on this on practical grounds, the only winning I care about is justice winning.

  6. Mr. Kirk: I was looking forward to Part 3 of the series.

    I was also looking forward to seeing this case escalate to the Supreme Court, where we might have (finally) received a definitive statement about privacy and our rights, a ruling that would put constitutional boundaries on future legislation…

    Oh well. I’ll have to content myself with reruns of Boston Legal.

    1. As Mr. Kirk has already said on a few occasions, this case really isn’t about privacy and rights. The owner of the phone has already granted consent. We certainly extend the issue to privacy and rights. And rightfully so. I think they need to be clarified, not established, by the Congress and/or the Courts.

      1. The specifics of this case may not be directly related to privacy (at the moment), but for this case, or any future case to get to the Supreme Court, Apple would have to successfully argue that there is a constitutional issue at play.

        It may be compelled speech, or it may be the very existence and continued legality of strong encryption. Or it may be limitations on the All Writs Act. All of these arguments are tangentially related to privacy rights.

      2. You’re right. The case isn’t about privacy and rights. It’s more subtle and complex, but for the argument to be relevant for the court it is about rights and privacy. The courts do not care about security alone. The courts are in business to interpret and execute the law, not what society, company, organization, etc… think is right.

        What’s Apple’s argument, “Your, honor, breaking the iPhone is bad because national security is at risk” No. That’s an argument for congress to hear and debate. That’s where Apple argued security. But, in the courts, Apple is arguing rights and privacy risks and how that is a security risk for all.

    2. I’ll tell you this. The case may not be going before the Supreme Court, but the FBI may have difficulty using the All Writs Act as freely as they were in the past. This case has shown everyone the arguments they can use to fight the FBI.

  7. “What’s going to happen is, on April 5, the government is going to give a status report and — surprise, surprise — they’re going to announce that they have miraculously found another way into the iPhone in question and the government won’t be needing Apple’s assistance after all.”

    You didn’t get the date exactly right but I bow to your prescience. Very impressive!!

Leave a Reply

Your email address will not be published. Required fields are marked *