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Apple-FBI Fight Signals A Need For New Political Precedent


This is WEEKEND EDITION from NPR News. I'm Lourdes Garcia-Navarro in for Scott Simon. Microsoft has announced it's taking Apple's side in that company's dispute with the FBI over whether it should be forced to hack an iPhone used by one of the San Bernardino terrorists. Other big tech companies are also supporting Apple after some initial hesitation. NPR's Martin Kaste reports on why the American tech industry sees this as the right moment for a showdown with the U.S. government.

MARTIN KASTE, BYLINE: One thing's for sure - the legal dispute here is really complicated.

ORIN KERR: Yeah, this case is like trying to find your way through a very thick fog.

KASTE: Orin Kerr is a law professor at Georgetown who specializes in questions of technology and privacy. He says the most relevant precedent here is a case from the '70s called United States v. New York Telephone. That was another case of a company resisting a request for help from the FBI. But back then, the feds wanted help installing a pen register. That's a surveillance device that keeps track of the numbers being dialed on certain phone lines.

KERR: They said, we don't want anything to do with this. We don't trust the government, we're staying out of this. And the Supreme Court ruled, in that case at least, that the New York Telephone company had to install the surveillance device and had to help the government pursuant to a law called the All Writs Act.

KASTE: So New York Telephone lost, and you think that's bad news for Apple today. But Kerr says not necessarily. That's because in that case, the court also set limits, big limits, on law enforcement's power to conscript the help of a company.

KERR: The Supreme Court in 1977 said some conscription is OK, but not too much. And not if it's really offensive to the company, and not if the company doesn't have a lot to do with the case. And it's a - such a confusing opinion that actually, it starts to look like it's just not clear which side that case supports.

KASTE: Historically, that kind of legal vagueness eventually gets clarified either by Congress or by more court rulings. Kerr says we seem to be on that track now with this question, but he says it's overstating things to see this particular case as the one that'll decide the matter.

KERR: However the court rules in this case, we're going to see rulings from other courts on exactly the same issue. So it's all going to kind of bubble its way up to the Supreme Court over time with this case getting all the attention. But legally, it's not really more significant than any other one.

KASTE: It's not legally more significant but politically, it might be. The fact that the FBI is trying to unlock an iPhone that was used by one of the San Bernardino terrorists has attracted a higher level of media attention and a lot of public sympathy for the FBI's position, according to polls. But Apple isn't exactly standing alone in this fight either.


BEN BAILEY SMITH: We at Microsoft support Apple and will be filing an amicus brief to support Apple's position in the court.

KASTE: That's Microsoft President and Chief Legal Officer Brad Smith speaking on Thursday to the House Judiciary Committee. For this announcement, he came prepared with a prop meant to illustrate the antiquity of some of the federal laws that govern privacy and technology.


SMITH: The leading computing device of that era is right here in front of me. It is an adding machine that went on sale in 1912.

KASTE: The other big names in the tech industry seem to have embraced Apple's argument that this is about more than opening just one phone, and that they should join the fight. Margaret O'Mara is a University of Washington historian who's writing a book about the politics and culture of the tech industry.

MARGARET O'MARA: You know, even if the government forces Apple to de-encrypt the phone, there's no loss in kind of standing up for individual freedom.

KASTE: That's because this is an industry that's now primarily focused on consumers, which wasn't the case in the early days of Silicon Valley.

O'MARA: Government industry and universities all were part of this very closely interlinked system and these projects in which people were working side by side. And industry - you know, they were entrepreneurs, they were free enterprise types, but they recognized that, you know, the government was their - in many cases, their largest customer.

KASTE: During the Cold War, government was the patron of the first generation of tech companies. But the current generation of companies, like Google and Facebook and Apple, don't have that kind of history. They're more skeptical toward government. And at the same time, government seems more deferential to the tech industry now. O'Mara says that played out for everyone to see three years ago when Apple CEO Tim Cook went to Capitol Hill to be grilled about his company's tax practices. At least, that's what was supposed to happen.

O'MARA: Instead, it quickly turns to, you know, senators saying oh, I'm a Mac person, oh, I have an iPhone here. And can you get - you know, how does this work? And so this very sort of friendly relationship is something that is operating in the background here. So again, it's no harm for Apple to take this position politically.

KASTE: With that kind of goodwill in Washington right now, Apple and the rest of the tech industry seem to have decided that this is as good a time as any to try to clarify the rules of the game for when law enforcement comes around asking for their help. Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.