There’s a recurring moment in political debates when a candidate, eager to speak directly to the American public, shifts his gaze from the moderators and opponents and talks straight into the camera. The move is a little jarring—especially when Chris Christie deploys his unblinking stare—but it’s effective: It says, “Forget these other candidates; I’m talking to you, voter.”
In their very public fight over device security, Apple and the FBI seem to be employing this same tactic. Instead of mining the tech industry or outside experts for support, the two organizations, both known for their secrecy, are breaking the fourth wall and turning to you, an American citizen and technology user.
Apple fired the opening salvo last week, when it responded to a federal judge’s order to help the FBI unlock an iPhone 5c that belonged to one of the shooters that killed 14 people in San Bernardino, California. In an open letter to customers, Apple CEO Tim Cook explained his opposition to the FBI’s request, arguing that it would set a “dangerous precedent” that would harm consumer privacy.
But going public wasn’t Apple’s first choice: The FBI appeared to force Apple’s hand. According to The New York Times, Apple asked the FBI to file its request for the company’s assistance under seal. But the government chose to file publicly instead, prompting Cook’s letter.
As the media struggled to keep straight the details of a complex technical and legal fight, Cook and FBI Director James Comey continued over the weekend to appeal directly to Americans to explain their reasoning.
In a very simply worded and direct letter posted to the Lawfare blog Sunday, Comey framed his controversial request as a routine effort to perform due diligence, while taking a moral stand on the San Bernardino investigation. “We can't look the survivors in the eye, or ourselves in the mirror, if we don't follow this lead,” Comey wrote. He called on “folks” to “take a deep breath,” and remember the terrorist attack that set off the probe.
Apple countered Monday morning with a frequently-asked-questions page that broke down, in a similarly straightforward way, the facts of the case and its argument for resisting the FBI’s request. And in an email to Apple employees that was shared with reporters, Cook wrote of receiving messages of support from “thousands of people in all 50 states.”
As Cook and Comey turned toward the camera to argue candidly for their positions, they continued to kick each other under the table. After Apple was granted more time to prepare its argument against the court order, the FBI submitted an aggressively worded motion to compel Apple’s compliance with its request, arguing that the company’s actions “appear to be based on its concern for its business model and public brand marketing strategy.”
While the U.S. District Court of Central California weighs the arguments, Apple and the FBI hope their preferred storylines prevail amongst the public. In Apple’s frame, Tim Cook is a crusader for privacy who stands up for constitutional rights in the face of an overreaching government. The FBI would prefer that Americans see Apple as a renegade corporation that’s blocking a crucial terrorism investigation to bolster its image and, ultimately, its bottom line.
News that a lawyer representing at least some of the victims of the San Bernardino attack will file on behalf of the FBI could hurt Apple’s image as the principled do-gooder in the scenario. That’s a calculated move: The lawyer says he was approached by the government to represent the victims last week.
In its question-and-answer page published Monday, Apple called for the FBI to withdraw its legal request and participate in an organized forum to determine the ideal balance between the use of strong encryption and law-enforcement access to protected data. The idea for a commission that would bring together civil-liberties, technology, and intelligence experts was put forward by Senator Mark Warner and Representative Michael McCaul in December.
It’s not clear whether such discussions would be public or private, but simply participating in a forum alongside government agents could help Apple look more cooperative on important national-security issues.
Even if Apple can successfully ward off the FBI’s request for assistance—a request with which which it admits it could technically comply—its reputation is at stake.
Under Steve Jobs, Apple was notoriously tight-lipped, revealing little outside of its biannual product-release extravaganzas. But since Cook took over after Jobs’s death, he’s been increasingly outspoken about civil-liberties issues, including LGBT rights and immigration. Last week, he was invited to testify alongside Comey in front of a House committee, in what could amount to his most public test.
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