The FBI's Fight With Apple Could Backfire

Ever since a court ordered Apple to provide the FBI access to an iPhone owned by one of the San Bernardino shooters, I have been talking to various legal authorities and Washington insiders to get a real-world sense of how this could play out.

Clearly, Apple is highly committed to its position; Tim Cook told ABC that it's willing to take this to the Supreme Court if needed. In the FBI's mind, it's a one-off situation that will gain the public's support because of the terrorism connection. But I get a sense that while the FBI did expect Apple to appeal, it did not anticipate that Apple would use this case to champion the importance of personal privacy and security and take it to the Supreme Court.

Apple has called for Congress to address this issue. But any legislation needs to balance the real need to protect citizens from terrorism and any other national threats in which the data on something like a smartphone would be critical in stopping such events.

A New York judge sided with Apple recently in a separate but similar case. He too argued that Congress should take up the issue since the founding fathers could not have imagined the complexities of digital rights and encryption and their impact on the Constitution. But think of this as the top of the first inning in this battle between the FBI, the Justice Department, Apple, and privacy and security advocates around the world.

My Washington contacts feel that no matter who is elected president, the U.S. Senate and House will still be polarized and never get around to agreeing on a constructive solution. Instead, they seem confident that it will take the Supreme Court to address this sensitive topic. With that in mind, Silicon Valley will likely be very interested in whomever replaces Justice Antonin Scalia on the court.

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But I am getting a sense from people in the know that the FBI may have bit off more than it could chew with this legal maneuver. It might even end up being counterproductive, as it will force government officials and the higher court to, at the very least, give it and us more precise rules and laws on this critical issue.