FBI vs. Apple: Where is this Going?

Several times over the course of my legal career, I’ve either had cause to delay a hearing on motion or had opposing counsel do the same. While nothing I have ever worked on has the sex appeal of the FBI vs. Apple, I can tell you that sometimes the reason for the delay is because one party thinks they’re losing and want some time to either get additional evidence or find some other way out.

With the FBI vs. Apple matter, the stakes are very high in terms of public relations and important but probably not as high in terms of legal precedent. A federal magistrate judge is a pretty important person but also at the bottom of the federal precedent pecking order. I’ve had a lot of people write me asking if they think this delay was the result of reconsideration at the FBI and my answer would be, “quite possibly”.

I don’t talk about it at MacSparky much but I served as a judicial extern for a federal judge a long time ago and spent some time in the trenches. That got me thinking about where this is all heading.

One point I think is generally missed by the tech press is that no matter what happens with the magistrate judge or, for that matter, the next judge on the next case, this issue will not get resolved for some time. An issue this big is going to work its way up through the Court of Appeals. Both Apple and the government know that and I suspect everybody is in it for the long haul.

The tech press also often writes about how a legislative solution will solve this and while on principal that makes sense, practically I’m not so sure. Judges generally prefer that the legislature come up with a specific law for questions before it rather than requiring the court to interpret some 200-year-old law that was never intended for regulating cellular phone encryption. I have my doubts as to whether any law could get passed given the current stalemate in Congress but given the way everyone goes a little crazy whenever the word “terrorist” is used, it’s not beyond the realm of possibility that they could pass a law. Indeed, such a law is already in motion.

However, thinking forward if Congress were to pass some sort of backdoor legislation and the President were to sign it into law, I expect we would land right back in the courts as Apple and other manufacturers and consumer protection groups, like the EFF, challenge such a law on constitutional grounds. That, in turn, would lead to more trips up the ladder at the courts of appeal and, most likely, the Supreme Court.

The best case scenario at the legislative end would be for a law to be passed restricting access and prohibiting the government from requiring backdoors in cellular phones. Let’s just say I’m not holding my breath for that one. In my opinion if there is going to be a law passed, it’s going to be a law requiring installation of a backdoor and not the opposite.

If that’s not enough to make your head spin, now think about 50 different individual state legislatures and countless foreign nations also taking a crack at requiring back door access to cell phone data.

Ultimately, I believe this question as to whether or not the government can force access into our mobile devices has to be decided by the Supreme Court. Until then, a great cloud will hang over this entire issue and for the next few years I’m guessing we will see lots of ink spilled on this issue. Put simply, even if the FBI backs down on the San Bernardino case, this issue is hardly over for any of us, including Apple.