The fierce iPhone battle between Apple and the FBI is spilling over into the White House, which has been poised to roll out a major policy statement on encryption and when the government should have access to locked smartphones.
Tech companies and privacy advocates have come out in full support of Apple’s defiance of a federal court order to unlock the iPhone used by one of the shooters in San Bernardino, Calif., pitting them against the FBI and the White House, which have supported the bureau’s tactics.
The standoff has painted President Obama into a corner.
The president has loyalties to Silicon Valley, which helped bankroll his presidential campaigns. But siding with the FBI against Apple, Google, Facebook and other tech powers isn’t the late-term fight he wants.
Yet politicians in both parties and broad swaths of the public are pressing the White House to do more to combat the rise of domestic terrorism. Many lawmakers and roughly half of Americans are siding against Apple, arguing federal authorities need to have access to encrypted devices to fight crime and terrorism.
The White House has “conflicting political desires,” said Tim Edgar, a former director of privacy and civil liberties for the White House national security staff.
“On the one hand, they don’t want to be seen as opposing the FBI in a major terrorism case,” he said. “But on the other hand, they don’t want to go out and give more ammunition to the idea that they’re selling out privacy.”
“They’re caught in a bind.”
That bind goes all the way back to 2013, when former National Security Agency contractor Edward Snowden exposed a bevy of secret government surveillance programs.
The revelations ruptured the tech community’s relationship with the administration and kicked off an encryption arms race to protect digital data from government spies.
The White House has since tried to walk a fine line between the tech, privacy and security communities.
It placated the tech sector and privacy advocates by backing a bill to eliminate some of the government’s more controversial spying powers. The administration has also repeatedly emphasized its support for strong encryption.
But the White House has shown deference to law enforcement by exploring legislative proposals and technological mandates that would give ensure investigators can get at encrypted data.
Last fall, the White House quietly backed away from those proposals, spurring criticism from both sides that the administration was being vague and evasive on the issue. In response, the White House said it would issue a more definitive policy platform shortly after the New Year.
“We really need an official statement from the White House ... so we know exactly where they stand,” said Amie Stepanovich, U.S. policy manager at digital rights advocate Access.
Now, former White House officials and privacy advocates are wondering if the administration has signaled what’s to come by standing aside and letting the Department of Justice (DOJ) go after Apple.
“By letting the DOJ move forward on this case, [the White House has] allowed the FBI to push forward with a precedent-setting case,” Stepanovich said.
If this approach “reflects the new White House policy, then you can start imagining what that [broader encryption] policy is going to be like,” said Jay Healey, a former director of cyber infrastructure protection at the White House now at Columbia University’s School of International & Public Affairs.
Instead of demanding that Apple decrypt the iPhone — a fearful scenario for tech firms — a court has ordered the tech giant to create software that would disable a security feature that erases the phone’s memory if an incorrect password is attempted 10 times in a row.
Apple nonetheless has characterized the requested software as a dangerous “backdoor” that could be exploited by hackers to crack all iPhones.
The White House disagrees, defending the FBI’s request as “quite limited in scope.”
“It doesn’t require Apple to redesign a product or to create some sort of new backdoor,” White House press secretary Josh Earnest said on Monday.
“It is an effective way for the FBI to follow their regular procedure as they conduct this independent investigation but also stay true to the kinds of principles that the president has discussed publicly about the need for robust encryption methods,” Earnest added.
To some former White House officials, the position outlined by Earnest appears to be a pragmatic solution to a complex problem.
It might be the right approach or it might not be, Edgar said, “but it’s a coherent policy and it doesn’t require much in the way of legal change.”
But the position won’t win plaudits from the tech and privacy community.
They view the request as a slippery slope that could lead to future requests to decrypt data, or even requests from foreign governments to unlock phones.
“They don’t seem to appreciate the general technical concerns,” said Chris Finan, a former Obama administration cybersecurity adviser who now heads California-based financial tech firm Manifold Technology.
In Silicon Valley, Finan said, the FBI’s request is viewed as “a matter of technical precedent,” not the “very specific legal case” the White House claims it is.
“Everybody should recognize this case as a very real push from the FBI to expand its existing authority, expand what we routinely think of as the FBI’s ability to force private actors to assist with a criminal investigation,” said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union (ACLU).
The White House’s deference to law enforcement on the issue has also driven speculation that the administration is letting FBI Director James Comey drive broader administration policy on encryption, an unsettling thought for many tech experts.
“I do think the FBI is playing a strategic game that is quite astute,” Edgar said. “I see Jim Comey as a very smart guy. There was a reason he decided to make a public stand around one of the most horrific terrorist attacks in the country since 9/11.”
“The FBI is playing chess,” he added.
Still, privacy advocates are holding out hope.
“I don’t think that it’s too late for the executive branch,” she added, “to forcefully come out supporting encryption.”