Many Ways to Slice the Apple Case

CEO Tim Cook has concerns that deserve more than ad hominem responses, but he may end up regretting the fight anyway.

Did Apple and the government pick the right case for digging in their heels?

The FBI wants Apple’s help to gain access to an iPhone used by Syed Rizwan Farook, one of the terrorists in the San Bernardino, Calif., attack in December that left 14 people dead. Apple has resisted and instead launched a debate about encryption technology and customer privacy. But this case isn’t directly about either of those issues.

The government doesn’t want Apple to unlock the phone. Rather, Apple is being asked to disable an auto-erase feature—which is triggered after 10 failed passcode attempts—so that the government can crack the device on its own using a computer. Nor is privacy a direct concern. Farook worked for San Bernardino County and the phone belonged to his employer. He had no guarantee of privacy while using a work phone, and the county has given the FBI permission to hack the device.

The Constitution protects against “unreasonable searches and seizures,” and it is possible that the phone contains evidence that Farook was in contact with other terrorist cells or had knowledge of other planned attacks. What’s not reasonable about the FBI’s request?

Apple, for its part, sees this as a power grab. The company has helped law enforcement on numerous occasions but is now being directed to do something that even authoritarian states like Russia and China have never requested: write software that would cause one of its devices to function in the exact opposite way that it was intended to function. In previous cases, involving earlier versions of the iPhone, Apple has had the ability to extract data without unlocking the device and did so pursuant to a search warrant. Apple is unable to do that using existing technology on later versions of the phone because more user data is now encrypted.

The FBI and other critics of Apple contend that the company is more concerned about its reputation than it is about thwarting terrorism, but that is overly cynical. Apple would have to develop a new version of its smartphone software to give the government what it wants, and the company is uncomfortable with the precedent that would set. Should the government be allowed to force Apple or other private firms to create certain products under court order? Should the Justice Department effectively be allowed to deputize Silicon Valley in this way at its discretion?

Nor would the FBI be the only entity asking Apple to perform this service. Law-enforcement officials in New York City say they are currently in possession of 175 locked iPhones. Manhattan District Attorney Cyrus Vance Jr., in a recent TV interview with Charlie Rose, said that if the government prevails in its case against Apple, he would seek access to any phone that is part of a criminal proceeding.

The company also argues, credibly, that creating such software will make Apple more of a target for hackers and cybercriminals. And won’t foreign governments reason that Apple should make the same tools available to them as well? Apple’s chief executive, Tim Cook, is naturally concerned about the company’s reputation and wants to reassure customers that their data is protected. That’s his job and fiduciary duty. But these other concerns are real and deserve responses that rise above the ad hominem level.

FBI Director James Comey also has a job to do, and he has repeatedly asked for legislative guidance on data-security matters. “Democracies resolve such tensions through robust debate,” Mr. Comey wrote on the Lawfare website in July. “It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make.”

The Obama administration, however, seems content to leave these decisions to judges. The administration could help its FBI director by putting forward some clear policy objectives that balance privacy and law-enforcement interests. But so far President Obama has largely ducked the encryption debate, and this leadership void has left the FBI looking to courts to resolve matters best left to the legislative and executive branches of government. The president views the tech sector as a deep-pocketed Democratic ally. In an election year, he isn’t eager to tip his hand, let alone sign legislation that may not be to Silicon Valley’s liking.

The Apple litigation is far from over, though the company seems to be losing in the court of public opinion. In a Pew Research Center poll released this week, 51% of respondents said that Apple should help the government unlock Farook’s phone; 38% said it should not. Mr. Cook may have started a debate he can’t win.

This piece originally appeared in The Wall Street Journal

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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator.

This piece originally appeared in The Wall Street Journal