ras-slava - Fotolia
The lines are being drawn in the fight over whether a court order should compel Apple to help the FBI unlock the iPhone of a San Bernadino terrorist who killed 14 people. And, while court proceedings haven't moved much, both sides have been busy trying the case in the court of public opinion this week.
Both sides claim their actions are in the name of security. James Comey, director of the FBI, has framed the agency's argument in the name of national security and following every potential lead in its attempt to root out terrorists.
"Maybe the phone holds the clue to finding more terrorists. Maybe it doesn't," Comey wrote in a blog post. "But we can't look the survivors in the eye, or ourselves in the mirror, if we don't follow this lead."
Comey also tried to assert that the FBI is not "trying to set a precedent or send any kind of message" with the court order.
"The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve," Comey wrote. "We simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That's it."
Unfortunately for Comey, that message has been undercut by a confidential National Security Council "decision memo" published this week by Bloomberg News. While the FBI has said publicly that it does not want to legislate backdoors, the memo reportedly described how government agencies could develop encryption workarounds, including estimating additional budgets and identifying laws that may need to be changed.
Separately, despite the FBI continuing to claim this case is only about the one iPhone used by Syed Farook, it has been reported that the U.S. Department of Justice has about 12 cases around the country in which it is attempting to gain access to locked iPhones in other criminal cases.
Apple digs in and gets support
Apple officially filed its motion to overturn the court order that would force it to create an iPhone backdoor to aid the FBI, and it contested the idea that this case is not just about one phone as the FBI claims. The motion stated that "the government knows those statements are not true … If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent."
In the motion, Apple claimed this case could have far-reaching effects beyond the FBI compelling Apple to create an iPhone backdoor.
"If it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties to do its bidding in the name of law enforcement," Apple wrote, describing ways the government could manipulate pharmaceutical companies or journalists in similar ways. "Indeed, under the government's formulation, any party whose assistance is deemed 'necessary' by the government falls within the ambit of the All Writs Act."
Apple CEO Tim Cook followed a similar line of logic in his first public interview on the topic. Cook repeated a number of times in the interview with ABC News that in his view this case "is not about one phone; it is about the future.
"Some things are hard and some things are right and some things are both. This is one of those things," Cook said. "Think about this -- it is, in our view, the software equivalent of cancer -- is this something that should be created? Technology can do many things, but there are many things technology should never be allowed to do. And, the way you don't allow it is to not create it."
Where the FBI framed the case as a matter of national security, Cook framed it as a matter of personal security and said someone's smartphone often has more personal information on it than can be found in their house, including banking information and the location of their children.
Cook argued what many infosec experts have argued in the past -- that "there's no such thing as a backdoor for the good guys; the bad guys will find it too." Cook even noted that the government isn't necessarily the best place for a master key or iPhone backdoor to be held, as evidenced by the millions who have had their information stolen in breaches of federal agencies like OPM.
Public polls on the topic showed the country is divided in supporting Apple with the majority currently supporting the FBI. A recent poll from the Pew Research Center found that 51% of those surveyed thought Apple should help the FBI unlock the phone, 38% said Apple shouldn't, and 11% were undecided.
Cook said he understood why people felt that way, but also said that the more people learn about why Apple has taken the stance it has, the more people are siding with Apple.
"What I've seen is people understand what is at stake here and increasing numbers support us," Cook said in the interview with ABC. "I have gotten thousands of emails since this occurred and the largest single category of people are from the military. These are men and women who fight for our freedom and our liberty, and they want us to stand up and be counted on this issue for them."
High-profile support in this case has been somewhat mixed. Michael Hayden, former director of both the NSA and CIA who has been a vocal advocate of strong encryption, said that he opposes this effort.
"Jim [Comey] would like a back door available to American law enforcement in all devices globally," Hayden said in an interview. "And, frankly, I think on balance that actually harms American safety and security, even though it might make Jim's job a bit easier in some specific circumstances."
Former Microsoft founder and CEO Bill Gates said this case could set a bad precedent and said there should be a balance "between safeguards against government power and security."
Microsoft itself has come out in support of Apple. Brad Smith, Microsoft president and chief legal officer, said the company would file an amicus brief next week, which is a filing that allows parties not directly involved in the case to weigh in. Twitter has also reportedly planned a similar filing in support of Apple, as have Google and Facebook who had previously stated support.
Ultimately, this looks to be a long and drawn out fight. And Tim Cook has said that Apple is prepared to take this case all the way to the Supreme Court if need be.
Learn more about the FBI's continued efforts to bypass encryption.
Learn about an open letter urging President Obama to resist mandating backdoors.