The government blinked in its fight with Apple over the San Bernardino iPhone.
But this landmark privacy battle is far from over, say legal experts, especially with public opinion likely to swing again toward national security after the latest terrorist attacks in Belgium.
“It’s another turn in a long road,” says associate professor Mark Grabowski, who teaches Internet law at Adelphi University in New York. “Maybe they find out how to unlock the iPhone, but there is a broader goal (accessing data) beyond this case.”
The Department of Justice’s request late Monday that U.S. court postpone its hearing with Apple, with the explanation it may have found an outside party to help the FBI unlock the seized iPhone of a San Bernardino shooter, blew a gaping hole in the FBI’s previous argument. Law enforcement had insisted only Apple could gain access to the iPhone found with Syed Farook who, with another shooter, killed 14 and injured 22 on Dec. 2.
Not necessarily. The act of terrorism in Brussels on Tuesday, which killed at least 30 people and wounded 230, could rekindle the government’s resolve just as the terrorist assault in California last year prompted the FBI’s clash with Apple, cyber security experts say.
The FBI “will use this terrorist attack to advance its case,” says Avivah Litan, a vice president at market researcher Gartner. “The public reacts very strongly to these types of incidents, and insists the government needs to do what is necessary to get the bad guys.”
It was that sentiment, Litan and others say, that emboldened the bureau to undertake its very public cause against Apple. San Bernardino, they claim, checked all the boxes in the FBI’s quest to find an air-tight case to push for weakened encryption on smartphones and other digital devices.
If encrypted data are an “element” in the bombings at the Brussels airport and subway station, there is renewed support for the FBI’s argument, adds Paul Rosenzweig, a law professor at George Washington University, who also advises tech start-ups.
But the events in Belgium could also buttress Apple’s argument about the importance of avoiding loopholes in its encryption.
Security codes, staff changes and other critical infrastructure are stored in the computing cloud and encrypted at most major airports, says Evan Greer, campaign director of Fight for the Future, a non-profit that supports Apple.
“If the FBI had its way weakening encryption with Apple, it makes most airports that much more vulnerable to these attacks, not less,” Greer says. “The FBI’s case was never about Apple or an iPhone, but setting a larger precedent. They (FBI) won’t back down.”
The FBI has said it’s testing this new method from an undisclosed outside party, and it will update the court by April 5.
Speaking late Monday, before the attack in Europe, an Apple attorney involved in the FBI square-off acknowledged the Silicon Valley company may find itself at legal loggerheads in a few weeks as it continues to match wits with hackers in a digital arms race. The attorney asked not to be identified because of the delicate nature of the ongoing case with the FBI.
While support for Apple has grown in the past month,— 42%-30% favor Apple, with 28% not choosing a side, according to a poll by Vrge Analytics before Tuesday’s events — the total could change after Brussels, concedes Tom Galvin, a partner at Vrge Analytics.
The standoff, highlighting a broader issue of whether a tech company should be compelled to provide technological support to extract troves of digital data it collects and stores, is a decades-old theme pitting law enforcement against technologists.
The stakes now are higher with the increased frequency of terrorist attacks and major hacking breaches, Greer and Litan say.