The Attacks in Brussels Up the Ante in the Dispute between Apple and the FBI: Will Congress Finally Step In?

March 29, 2016

The Apple-FBI dispute involves our right to privacy and our concern for national security. In a recent development in the case on Monday, March 21, the Justice Department’s request to postpone its hearing with Apple was granted. The government decided it could break into the iPhone on its own, thus allowing Apple to maintain its encryption and technological integrity. This was seen as a victory among some proponents of digital privacy. Cindy Cohn, Executive Director of the Electronic Frontier Foundation, explained that this recent development in the case “shows that we can stand up to the FBI and force it to think a lot harder.” However, the celebration may have been premature, as the very next day the attacks in Brussels reminded us that technology may have the ability to prevent future tragedies, and

each attack increases the sense of urgency that we need to do something.”

On Tuesday, March 22, 2016, two explosions in Brussels killed 30 people and wounded more than 230 others. These recent terrorist attacks remind us how important national security is and raises the stakes in the San Bernadino case. In a new Pew Research Poll, the majority of the general public sides with the FBI and believes Apple should comply with the FBI’s request to unlock the phone in question.
Although these attacks may evoke a visceral response in us, we should be careful to keep an eye on the bigger picture, and remember that our privacy rights are being targeted. What is at stake is not just national security, but the ability for the government to take advantage of encryption vulnerabilities in other cases as well. In addition to Syed Rizwan Farook’s phone in the San Bernadino case, the Justice Department is demanding Apple to unlock at least nine other phones. For example, the Justice Department sought to have Apple unlock Jun Feng’s phone after he pled guilty to participating in distributing methamphetamine. Even the FBI Director James Comey, whose fight for access to Farook’s phone is built on the “special circumstances” argument, said that if the FBI wins this dispute, “it would ‘potentially’ set precedent for similar cases” in the future.
The recent hearing postponement shines light on another side to this dispute: if the government finds a way to break into  Farook’s phone, Apple will fix that vulnerability in its encryption and issue an update to the software with stronger encryption. As a result, the government will be forced to figure out a new way hack the encryption for the next time they wish to unlock someone’s phone. This cycle of legal disputes and technological fixes will continue in a law and technology version of cat-and-mouse. But Apple is not backing down on its stance and views itself as a “voice” for any person (or company) too afraid to stand up for themselves. Tim Cook, Apple CEO, recently wrote to customers explaining that Apple has even ensured that Apple cannot reach customer’s data, further illustrating how important the company values customers’ privacy.
Both Apple and the FBI have asked Congress to promulgate a law that pertains specifically to encryption technologies.  This sentiment is echoed by experts who claim the only way to put an end to this dispute is for Congress to get involved. Representative Jim Sensenbrenner, Jr. answered this request by stating it was in both parties’ best interest to resolve the dispute without Congress’s help because he doesn’t believe the parties “are going to like what comes out of Congress.”  This statement may have led to the FBI’s request to postpone the March 22 hearing. It seems, however, that Rep. Sensenbrenner’s comments no longer hold true in light of the recent terrorist attacks in Brussels. People have become less occupied with notions of privacy, and are more concerned with safety. And as terrorism continues to pervade our lives, Congress will continue to experience the pressure to get involved. In fact, the House Judiciary Committee and the Energy and Commerce Committee was recently formed and “charged with identifying solutions for balancing encryption technology and law enforcement’s needs by the end of the year.” Regardless of these committees, Senator Ron Wyden (D-Oregon) accurately explains that “it’s clear the fight over strong encryption is far from over.”