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Latest in Apple v FBI public squabble over iPhone crack demand

Cook and Comey vie for public opinion but look to Congress/America for resolution

Analysis In the latest salvo in a very public war, Apple's CEO and the FBI's director have published letters arguing their cases over gaining access to a locked iPhone.

In Apple's corner, Tim Cook sent an all-staff email Monday morning in which he argued that the case represents a "precedent that threatens everyone's civil liberties."

FBI director James Comey meanwhile wrote a letter published on Sunday in which he argued the opposite: that the legal argument "is actually quite narrow" and its use would become "increasingly obsolete."

The war of words highlights the importance that public opinion is going to have on this critical test case, where the privacy of the individual is going to be weighed directly against the ability of law enforcement to investigate crimes. Both sides feel they have a strong case.

Cook's email was turned into a public Q&A posted on the Apple website. In it, he highlights the "outpouring of support we've received from across America" since he formally – and publicly – refused to abide by a court order that required Apple to write a version of its mobile operating system so the FBI could unlock the phone of San Bernardino shooter Syed Farook.

Public debate

Cook is certain that an open public debate on the matter will fall down in Apple's favor, given the increasingly personal information American citizens store on their phones and a general distrust of the federal government.

As such, he and Apple are painting the case as one that has far-reaching impacts. "This case is about much more than a single phone or a single investigation," he wrote. "At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone's civil liberties."

The FBI's Comey paints the opposite picture: that this is a rare and extraordinary case. "The San Bernardino litigation isn't about trying to set a precedent or send any kind of message," he wrote. "It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law."

Interestingly, both sides recognize in the middle of tearing down the other side that they may have hit an impasse that will require a large public debate to decide.

Cook specifically highlighted a proposal before the US Congress to create a special commission to look at the issue of encryption and privacy, which is at the heart of the matter. He wrote: "We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms. Apple would gladly participate in such an effort."

'Awesome new technology that creates a serious tension'

Apple would likely gain more from Congress' general inability to achieve anything due to partisan in-fighting, but the FBI's Comey also lends some weight to the idea of taking the issue out of the boxing ring and into more institutional hands.

"Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure – privacy and safety," he wrote. "That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before."

There were, of course, some side-swipes by both sides: the FBI accusing Apple of putting marketing ahead of the country's security and Apple implying that the FBI is either incompetent or disingenuous when it caused the iCloud back-up of the phone in question to lock up.

But both sides appear to have realized that they are not going to reach a solution between themselves, and an endless public fight is going to rapidly make both of them look bad.

Survey

Increasingly, in the first of what will likely be numerous surveys on the matter, reputable survey company Pew Research Center found that the FBI's perspective is slightly more popular.

A majority – 51 per cent – of those it spoke to said they felt Apple should unlock the phone, whereas 38 per cent said the company should not, and 11 per cent were undecided.

The topic had a surprising level of awareness: 75 per cent of the 1,002 people it spoke to were aware of the issue and 39 per cent said they had heard "a lot" about it.

Perhaps more surprisingly, there was almost no difference in opinion between Republicans and Democrats on the issue, with 56 and 55 per cent respectively saying Apple should open the phone.

There are obviously all sorts of other factors and questions that may come into play. And most significant will be if the case represents a precedent.

There isn't credible polling data yet on how they would change support for the court order, but it is not hard to imagine that if the FBI's order was taken to be a legal precedent, that could lead to it being granted access to many more people's phones; then the balance of agreement could shift the other way. ®

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