Could the FBI Court Order to Apple be Counter-Productive?

Since the court order came out ordering Apple to assist the FBI in accessing the iPhone of the San Bernadino terrorist, I have been talking to various legal authorities and Washington insiders to try and get a real world sense of how Apple’s strong stand against this could play out. Clearly, Apple is highly committed to their position and, as Tim Cook told ABC recently, they are willing to take this to the Supreme Court if they must.

This is of course a highly emotional issue and, at least in the FBI’s mind, a kind of one-off situation. Since the shooter is dead and the phone itself belongs to the City of San Bernadino, they felt this was the one case they could really challenge Apple on and, using public opinion, force them to find a way to get Apply to comply with this specific order.

But I get a sense that, while the FBI did expect Apple to appeal, they did not anticipate Apple would also use this case to actually champion the importance of personal privacy and security and to challenge it at a level that could ultimately force it to Congress and/or the Supreme Court for resolution.

From Apple’s viewpoint, they appear to have ultimately realized that at some point this larger question of digital security and privacy had to be forced to higher authorities to get a proper ruling. To the FBI’s chagrin, this court order was looked at by Apple as the ideal way to force the national conversation and get the kind of legisltative action needed to determine the digital privacy and security rights of US citizens. But any legislation also needs to balance the real need to protect citizens from terrorism and any other national threats in which data on something like a smartphone would be critical to use for this purpose.

This push towards making this a constitutional issue was reinforced by a NY judge on Monday who agreed this type of case must be looked at from a congressional level since the original founders could not have imagined the concept of digital rights, encryption and its impact on the Constitution. But think of this as the “top of the first” in this battle between the FBI, Apple, and privacy and security advocates.

My Washington contacts feel that, no matter who is elected president, the US Senate and House will still be polarized and will take various positions on this issue and will never get to doing anything constructive about this legal question. Instead, they seem confident it will take the Supreme Court to actually bring a ruling on this important and sensitive topic. With that in mind, Silicon Valley will be probably be more active when it comes to supporting whoever is put forth to replace Justice Scalia, as it is most likely this will not get to the Court until it has all nine judges seated.

But I am getting a sense from people in the know I talk with that the FBI bit off more than they could chew with this legal maneuver.

More importantly, if the eventual outcome is to tighten cyber security and privacy laws, this move by the FBI would have been very counter-productive for them. But, at the same time, they probably did the American people a favor since it will now force our government officials and the higher court to, at the very least, give us more precise rules and laws on this critical issue for America and other democracies and governments around the world.