The FBI May Have Dropped One Case Against Apple, but the Battle is Far from Over

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The FBI May Have Dropped One Case Against Apple, but the Battle is Far from Over

The San Bernardino shooter’s iPhone was allegedly unlocked by an ‘outside party’, making that case moot. But many others are going forward

'There is no other way to look at this than as a win for Apple and for the hundreds of millions of people who rely on encryption to protect their private information,' writes Timm. (Photo: Surian Soosay/flickr/cc)

After a torrent of public criticism and an 11th-hour assist from a mysterious “outside party”, the FBI suddenly dropped its unprecedented demand to Apple on Monday that the tech giant re-write its software to backdoor the encryption that protects its iPhones to facilitate surveillance. While this is an undeniable win for both security and civil liberties, it’s almost certainly only temporary.

That’s because the battle between the Department of Justice and Apple is far from over – it’s probably just begun. The agency merely dropped its most well-known case; there are at least a dozen other similar legal fights open against Apple around the country, and those are just the ones we know about.

So far, there is no evidence that the FBI plans on abandoning the others, despite the agency’s apparent new-found ability to break into at least some versions of the iPhone without Apple’s assistance. Judging by the statement released to the press on Monday night, it sounds like they plan on pressing forward even harder.

“It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails,” a justice department spokesman said. “We will continue to pursue all available options for this mission, including seeking the cooperation of manufacturers and relying upon the creativity of both the public and private sectors.”

They failed to mention how their quest to leave no technology un-surveillable puts the security of everyone’s devices at risk – or how the law doesn’t allow them to do what they are attempting. But “pursue all available options” they will.

And their efforts will likely make the entire process even less democratic than it already is. Instead of attempting to ask Congress for a bill to ban the implementation of end-to-end encryption, which they probably know is a non-starter given public resistance, they may now be incentivized to take their fight even further into the shadows, using government secrecy to obscure their actions from the public.

This is unfortunately the most likely scenario after their attempt to take this case to the public backfired so spectacularly. Maybe the FBI thought they were going to garner sympathy from the public because the underlying case involved a deceased terrorist and a deplorable crime, but they sorely mistook the public’s reaction when it eventually was clear that the FBI’s demand would put the security of millions of innocent people’s phones in danger. (To give you an idea of how bad the public criticism of the FBI got, even the Wall Street Journal’s editorial board wrote that the the FBI’s handling of the case “continue[s] to supply more reasons to doubt their credibility and even basic competence.”)

Don’t be surprised if justice department instead attempts to keep future cases sealed from all but Apple’s lawyers, denying the public the right to even know that court battles are going on for as long as possible. Or perhaps they’ll go to the ultra-secret Foreign Intelligence Surveillance court and demand the same thing, where they’re even more likely to be able to argue with no opposing side present and will all but ensure the public won’t find out what happened for years.

Behind the veil of official secrecy, the FBI can avoid the scrutiny they unexpectedly received from broad swaths of the public, and statements like “this is only about one phone” – ludicrous from the start – won’t need to be uttered. And arguments like “Apple has the sole ability to assist us” – which the FBI made 19 times in court documents before admitting they could unlock it themselves – is unlikely to receive nearly as much scrutiny from security experts as it did this time around.

There is no other way to look at this than as a win for Apple and for the hundreds of millions of people who rely on encryption to protect their private information. But there is no doubt we’ll be back in this situation again soon. The only question is when.

Trevor Timm

Trevor Timm

Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and legal analyst who specializes in free speech and government transparency issues. He writes a weekly column for The Guardian and has also contributed to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and Policy Review, PBS MediaShift, and Politico. Follow him on Twitter: @TrevorTimm

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