The implications of Apple’s fight with the FBI

"This week a fed­eral judge ordered Apple to help the FBI unlock a work-​​issued iPhone used by a gunman in December’s deadly San Bernardino, Cal­i­fornia, shoot­ings. But Apple opposed the ruling, objecting to building what it calls a “back­door.”In a mes­sage posted on the company’s web­site, CEO Tim Cook said that while the com­pany believes the FBI’s inten­tions are good, this demand is an “unprece­dented step” that “threatens the secu­rity of our cus­tomers.” The case is raising the stakes in a com­plex and long-​​running standoff between gov­ern­ment and Sil­icon Valley over access to encrypted data—one that involves bal­ancing con­sumers’ dig­ital pri­vacy with the author­i­ties’ ability to inves­ti­gate crime or terrorism.

Andrea Matwyshyn, pro­fessor in the School of Law, studies tech­nology inno­va­tion and its legal impli­ca­tions. We asked her to examine how this case might play out, with a par­tic­ular focus on its poten­tial impact on future fed­eral inves­ti­ga­tions, the average iPhone user’s pri­vacy, and the global market.

In a mes­sage to cus­tomers, Apple CEO Tim Cook wrote that while the gov­ern­ment may argue that using this back­door would be lim­ited to this case, “there is no way to guar­antee such con­trol.” He added that the gov­ern­ment could extend this “breach of pri­vacy” to demand that Apple create sur­veil­lance tech­nology and other soft­ware to access users’ phones without their knowl­edge. Are these fears jus­ti­fied, and if a so-​​called “master key” is cre­ated, how broad could its usage be by the government?

Cer­tainly any case law arising from this ex parte demand by the Depart­ment of Jus­tice would create prece­dent that other courts would regard as instruc­tive for sim­ilar future law enforce­ment demands. It’s fair to worry about a slip­pery slope arising from the out­come of this dis­pute: If pri­vate sector enti­ties become con­scripted as unwilling agents of law enforce­ment and are no longer free to design their own prod­ucts to meet the demands of their cus­tomers, our innovation-​​driven economy will be per­ma­nently damaged.

To date, Con­gress has been unwilling to leg­is­late on the point of requiring tech­nology com­pa­nies to alter their product designs to include law enforce­ment “back­doors,” despite aggres­sive lob­bying efforts from law enforce­ment. This ex parte order against Apple poten­tially rep­re­sents law enforcement’s attempt to cir­cum­vent this con­gres­sional impasse by achieving a func­tion­ally sim­ilar result incre­men­tally through the courts."