January 21, 2020
Nicholas Weaver has a good piece at Lawfare explaining the difference between DoJ’s request for Apple’s help in the Bernardino case (where it could have written software to break the iPhone’s security) and the recent request in the Pensacola case (where it seems they can’t help even if they wanted to). He concludes:
With this in mind, the FBI’s request for Apple’s help is puzzling. If the government takes Apple to court, as it did in the San Bernardino case, the judiciary can’t compel Apple to provide any meaningful assistance—because there is no more meaningful assistance Apple can provide. San Bernardino was about Apple not wanting to assist the FBI. This is about Apple being incapable of assisting the FBI.
So even if the case winds up in court, real help from Apple is not going to come out of a judicial battle. The meaningful fight is in the court of public opinion.
In my recent post on this, I also noted the curious difference that while DoJ was sought a court order in the San Bernardino case, they weren’t now. I mused that Apple’s compelled speech First Amendment defense had put off DOJ from seeking such orders. I concluded, “That’s a fight that the DOJ doesn’t seem inclined to pick again, so they seem to now be limiting themselves to trying to influence public opinion; not go to court.”
One way to figure out what DoJ is up to is to add in that, as I wrote yesterday, it seems Stefan Savage’s key escrow paper has been making the rounds on Capitol Hill. DoJ and the president’s behavior makes more sense if what they are agitating for is legislation creating a requirement for device manufacturers to be able to decrypt user data for law enforcement. I’m not aware of any such legislation being seriously considered in Congress, though there is certainly a lot of talk. Not a prediction, but I will note that the State of the Union address will take place in two weeks. I’ll be watching closely.
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