Everyone has been expecting a high-profile clash between the government and tech companies over backdoors to encrypted devices, or what FBI Director James Comey calls "going dark." The debate might have finally come to a head this week.

First, some background: FBI investigators have been unable to unlock an iPhone 5C owned by Syed Rizwan Farook, one of two terrorist who shot and killed 14 people in San Bernardino on Dec. 2. The device is locked with a PIN code and will be wiped clean after 10 failed attempts to gain access.

Apple told the FBI the company does not have the means to circumvent this failsafe, prompting law enforcement to ask the courts to intervene.

On Feb. 16, a federal judge ordered the company to develop a software solution that would give investigators an unlimited number of tries without fear of losing any data stored within. The judge gave Apple five days to comply but the company didn't even need one.

"The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers," Apple CEO Tim Cook said in an open letter posted Feb. 16 explaining why the company defied the FBI's request. "We oppose this order, which has implications far beyond the legal case at hand."

"For many years, we have used encryption to protect our customers' personal data because we believe it's the only way to keep their information safe," Cook continued. "We have even put that data out of our own reach because we believe the contents of your iPhone are none of our business."

But the nuance of this case is subtler than the broader debate over encryption and "going dark," though forecasters on both sides of the argument are reading the signs and preparing for a storm.

Robert Cattanach, a former DOJ attorney and current partner at Dorsey & Whitney, called the clash "the next salvo in the ever-escalating battle between law enforcement and tech companies."

"To be sure, this is unchartered territory," he said. "The government is not relying on a traditional search warrant. It cannot seek something from Apple — in this case the contents of the phone — that Apple doesn't have. Nor is it seeking a true 'backdoor' to encryption, which would certainly raise howls of protest from both tech companies and the public at large."

But the request puts Apple in an awkward position. Cattanach noted while the company doesn't want to appear to support terrorists, developing new software to enable the FBI to crack Farook's phone would be the first step "down a slippery slope ending in backdoor unencryption," in which law enforcement would have the keys to unlock any device produced in the U.S.

"We have no sympathy for terrorists," Cook wrote, addressing the San Bernardino issue directly. "Up to this point, we have done everything that is both within our power and within the law to help [the FBI]. But now the U.S. government has asked us for something we simply do not have and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone."

For their part, law enforcement officials don't see this as the first foray into the "going dark" debate, as they're not asking Apple to open a backdoor so much as asking the company to turn off the electric fence.

"Although a judge previously had issued a warrant authorizing investigators to search the phone, we are unable to conduct that search without Apple's assistance," a Justice Department spokesperson told Federal Times in a statement. "The judge's order and our request in this case do not require Apple to redesign its products, to disable encryption or to open content on the phone."

Rather than cracking the device completely, the FBI is asking Apple to shut down one security feature so the bureau can crack it on its own.

"After 10 attempts, the data get wiped and we don't want to take the risk," a law enforcement official told Federal Times, asking not to be named speaking about an ongoing court case and investigation.

The official noted the FBI is only asking Apple to develop the software and install it on this one device; Apple would keep the proprietary information for creating the software to itself, forcing law enforcement to go to the company for any future requests.

The official also noted the phone is technically the property of the San Bernardino County Department of Public Health, which has said it wants the phone unlocked, too.

Outside of the immediate issues, Cook called the greater implications of complying with the court order "chilling."

"If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data," he wrote. "Ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect."

Valerie Barreiro, director of the Intellectual Property and Technology Law Clinic at the University of Southern California Gould School of Law, couched it in similar terms.

"The court is ordering Apple to write brand new code to bypass key features of iPhone security which serve to protect everyone that uses an iPhone — an unprecedented interpretation of the law," she said. "Is privacy a requirement of liberty? How do we ensure privacy and national security? These are the issues at stake and they merit a broader discussion."

About Aaron Boyd

Aaron Boyd is an awarding-winning journalist currently serving as editor of Federal Times — a Washington, D.C. institution covering federal workforce and contracting for more than 50 years — and Fifth Domain — a news and information hub focused on cybersecurity and cyberwar from a civilian, military and international perspective.

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