Lucy Nicholson / Reuters
When the Department of Justice dropped its high profile legal dispute against Apple in New York last week, just hours before a court deadline, the sudden turn of events would have seemed surprising — had a nearly identical plot-twist not played out just one month ago in San Bernardino, in a case involving another encrypted iPhone.
In both cases, the government tried to secure a court order that would have forced Apple to bypass the security features built into its iOS operating system. But in San Bernardino and in Brooklyn, the government was ultimately able to access the encrypted data it sought without Apple’s help, and subsequently withdrew its requests for a court order. Leading up to these breakthroughs, however, the government repeatedly and very publicly insisted that Apple alone had the capability to access the devices.
That these claims ultimately proved untrue, on top of massive pushback from Silicon Valley and civil society groups, has proven something of a boondoggle for the Justice Department, whose shifting narrative has drawn criticism from media and lawmakers, both — some of it particularly brutal. Consider this Wall Street Journal editorial: “Judges ought to exercise far more scrutiny in future decryption cases even as [FBI Director] Comey continues to pose as helpless.”
So, after two scuttled courtroom conflicts, will the government shift to a different strategy?
With the broader encryption fight unresolved, the Justice Department remains eager for a solution to what it perceives as the crisis posed by secure communications.
“You can’t be certain, but I would guess they will reconsider,” Andrew Crocker, a staff attorney with the Electronic Frontier Foundation, told BuzzFeed News. “They might very well use what happened in these cases to say to Congress: ‘We need a legislative solution.’”
For Apple and its allies, the Justice Department’s last minute legal withdrawals were seen as modest victories. But for some lawmakers critical of the FBI, the 11th hour breakthroughs also pointed to a lack of due diligence on the part of law enforcement, and to the idea that perhaps the unexpected announcements had less to do with technological breakthroughs than with the government wishing to avoid imminent defeats in court.
The legal feuds between Apple and the government revolved around an 18th century statute known as the All Writs Act. In these two prominent cases, and many others that are under seal and protected from public view, the government relied on the AWA to seek a judge’s permission to compel a technology company to access encrypted data. But Crocker and other experts believe that invoking the AWA as an encryption-defeating legal tool has proven ineffective for the Justice Department, following Apple’s public challenge to the government’s interpretation of the law.
“My best guess is they will abandon the strategy of using the All Writs Act to unlock phones,” Crocker said. “Part of setting a precedent is convincing the public. And I don’t think that has gone well.”
Joseph DeMarco, a former federal prosecutor who represented the Federal Law Enforcement Officers Association and the Association of Prosecuting Attorneys in both the San Bernardino and New York iPhone cases, disagrees. “Let’s just wait and see when the next time it is that the government needs Apple’s help, and Apple won’t give it,” DeMarco told BuzzFeed News.
The AWA remains a crucial law enforcement tool in encryption cases, and while the Justice Department may increase pressure on Congress to find a legislative fix, we’re more likely in the coming months to see another iPhone dispute than a new law in an election year, DeMarco said.
“We’ll see litigation again. And undoubtedly, at some point, it will be in a case which goes to further decision making by district court judges and appellate court judges. I think that is more likely to happen before there is any legislative solution,” he said.
Rianna Pfefforkorn, the cryptography fellow at Stanford’s Center for Internet and Society, believes the Justice Department will continue to pursue a multi-pronged strategy, pressing the encryption issue on lawmakers, in meetings with tech companies, and in the courts. But following San Bernardino and New York, it will mount litigation below the public’s radar.
Pfefforkorn told BuzzFeed News that the Justice Department may use the perceived failures of the two cases to strengthen their pleas to Congress — that federal prosecutors need a legal tool beyond the All Writs Act — “even if they are pressing AWA cases under seal somewhere else.”
While the Brooklyn case was still active, unsealed court documents revealed that the Justice Department was pursuing court orders against Apple in a dozen other cases, all featuring locked devices. And the government is relying on the All Writs Act in all 12. Since the list was made public in February, it’s possible that additional cases have been lodged by the government. What’s less certain, however, is if any of them will play out in the public sphere, inviting the media attention and scrutiny that turned San Bernardino into a national debate.
Ironically, Apple and the FBI are in agreement on one issue: that any new national encryption policy should be set by the American people, rather than by a judge’s decree. But the most prominent encryption legislation on Capitol Hill has been met with fierce resistance, amid claims by privacy-minded lawmakers and technologists that any government mandate to weaken American encryption technology would be disastrous. For now, all that Washington and Silicon Valley seem comfortable with are efforts to study the issues further.
If the law enforcement challenges posed by encryption are as dire as the FBI and Justice Department say they are, it’s not clear if our duty-bound public officials will have the patience to wait. Although, they may have to.
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