FBI and Apple Ratchet Up Their War of Words

FBI Director James Comey says he just wants to be able to look the families of the victims of the San Bernardino attack in the eye. Apple CEO Tim Cook says he has “no sympathy for terrorists” but that the Justice Department’s attempt to force his company to unlock one of its phones poses a huge security risk to all its customers.

The competing statements highlight the vast gulf between the two sides — and why it will be so hard to bridge. To Apple and its allies in Silicon Valley, the FBI’s push for access to the information stored on San Bernadino shooter Syed Rizwan Farook is an example of government overreach at its worst and could do lasting damage to the privacy of its customers by opening its devices to possible hacking by state actors and criminals. To the FBI and presidential candidates like Donald Trump, the company’s embrace of hack-proof encryption technology — and refusal to help law enforcement in active investigations — hampers vital probes and makes terror attacks more likely.

As they wage a closely watched legal battle with one another in a California courtroom, Apple and the FBI are carrying out a high-profile PR battle. In the last day, that battle has taken a melodramatic turn, as the two combatants sketch out increasingly hardline positions.

In a post on the Lawfare blog, Comey argued that his bureau is not seeking a legal precedent to force technology companies to unlock encrypted data in other cases — this despite the fact that Comey has in recent months repeatedly said that law enforcement agents in the United States are in possession of hundreds of iPhones that they cannot unlock and which may contain key evidence in criminal investigations. Comey said he was instead acting with the victims of the December terror attack in mind.

“The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message,” Comey wrote. “We can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.”

In a Friday filing, the Justice Department claimed that Apple refused to comply with last week’s court order “appears to be based on its concern for its business model and public brand marketing strategy.”

On Monday, Cook fired back at the Justice Department. “This is and always has been about our customers,” Cook wrote in a letter posted to Apple’s website. “We feel strongly that if we were to do what the government has asked of us — to create a backdoor to our products — not only is it unlawful, but it puts the vast majority of good and law abiding citizens, who rely on iPhone to protect their most personal and important data, at risk.”

Tech experts, however, argue that Apple has overstated the degree to which it is acting purely on behalf of its customers’ privacy. “What will drive this debate is the global market,” James Lewis, a senior fellow at the Center for Strategic and International Studies, wrote recently. “Foreign consumers want assurance that the U.S. government cannot access their data.”

Cook has said that he expects China will eventually be Apple’s biggest market, and the country currently delivers about 25 percent of the company’s total sales. The perception that Apple is in the pocket of the United States’ government and freely hands over data to Washington represents a huge risk for the company’s international growth strategy. To prevent such an impression, Apple has embraced strong, all-but-impossible to access encryption.

Apple did not respond to questions about the extent to which its business interests are motivating its stance in the San Bernardino case.

There’s also reason to be skeptical about the FBI’s most recent public statement. Nate Cardozo, a staff attorney at the Electronic Frontier Foundation, a privacy advocacy group, called Comey’s claim that he isn’t seeking a precedent in the case a “bald-faced lie.”

The San Bernardino case, Cardozo explained in an interview with Foreign Policy, is tailor made to set a strong precedent for American law enforcement. Because the phone is owned by Farook’s government employer, which had consented to having it searched, Apple cannot bring a 4th Amendment defense. The case involves a terrorism case that plays powerfully on the compelling public interest to prevent future such attacks.

Moreover, the FBI — and not the NSA — remains in custody of the phone. “I can say with some confidence that the NSA has the best hackers in the world,” Cardozo said, adding that if the FBI’s most important priority was to merely access data, they likely would have just handed the phone to Ft. Meade.

Apple had sought to keep the legal battle under seal, but the FBI moved to make it public, Cardozo pointed out. And by prosecuting an emotional case in public, the FBI appears to be trying to build public support for its position, he said. A national survey released by the Pew Research Center on Monday, found a narrow majority of Americans believe that Apple should unlock the shooter’s phone for the FBI.

For months Comey has been waging a high-profile campaign over what he has called the “going dark” problem. Law enforcement agencies around America, he has said, are unable to access the encrypted communications of both ordinary criminals and terror suspects. This has made it harder for the FBI to complete its investigations, a problem that will only become more pervasive as encryption becomes more widely available, according to Comey.

The FBI declined to respond to questions about whether Comey has misrepresented his agency’s priorities in the Apple case.

Both Apple and the FBI’s most recent statements include pleas that Congress and step in and settle this fight. Comey said the dispute between Apple and the FBI highlights an “awesome new technology” that poses a “serious tension” between “privacy and safety.”

“That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living,” Comey said. “It should be resolved by the American people.”

“We feel the best way forward would be for the government to withdraw its demands,” Cook said, “and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms. Apple would gladly participate in such an effort.”

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