This case was supposed to be the showdown between Big tech and Big brother, between privacy and cybersecurity, between national security and individual rights.

However, the climatic showdown that pitted one of the largest and most powerful tech companies, Apple, against one of the largest and most powerful government agencies, the FBI, appears to have come to a rather anticlimactic end.

In fact, nothing has been decided. The FBI has withdrawn its request.

Basically we are left with a rain check.

The FBI, having a sympathetic cause, a very real and specific terrorist incident, the San Bernardino terrorist attack, asked for Apple’s help in circumventing the iPhone’s security features in order to access the terrorist’s phone.

Apple said no, reasoning that creating this backdoor access could have broad and far-reaching consequences for all of their customers’ privacy. The FBI took it to court, seeking to force the court to provide a definitive answer on when a technology company must assist a government agency in order to protect our national security.

That is not what happened here though. Instead a third party stepped forward and cracked the iPhone, leaving all of these issues very much open.

Although this is the first time this type of request has achieved this level of publicity, they are pretty common and have taken place and been settled behind closed doors for years. Currently, there are about a dozen pending cases with similar requests.

In reality the larger and perhaps more interesting question is how can technology companies, not just Apple, or more importantly how SHOULD technology companies work together to address the vast and fast moving array of privacy, security, regulatory, safety and technology issues that arise as our technology continues to evolve at quicker paces. Clearly the government has an interest in collaboration and has been actively seeking, quite frankly, to keep up.

This is especially true in the FinTech sector. To that end, the State Department as part of its Innovation Forum series has hosted round table discussions with FinTech leaders specifically addressing the way transformations in FinTech change how the US advances foreign policy.

In our space, issues around bank regulations, privacy and KYC/AML requirements are especially salient. Weighing national security against privacy is merely one piece of the pie. Consequently, as the way we choose to use technology becomes increasingly complex we should expect to see these issues collide even more frequently.

Interestingly, Susan Landau, a professor of cybersecurity policy at Worcester Polytechnic Institute argues that the best outcome is for the Government and private sector to be collaborative by being competitive. Here, the main goal is in creating a system where an emphasis is placed on creating the best technologies. Essentially, both parties should challenge each other by participating in an arms race between cybersecurity and digital investigative tools. In turn, making us all safer.

This case highlights in a very real and tangible way technology issues that have been percolating under the surface. Solutions exist. However discourse between politicians, companies and other governmental agencies must continue in order for us to find them.
Who knows? Ultimately, this might not be an issue that the public is most comfortable with the courts deciding. Instead perhaps this is a job for the newly formed Federal Privacy Council.

Further Reading:

http://www.theguardian.com/technology/2016/mar/29/apple-fbi-encryption-san-bernardino-uncomfortable-
http://www.usatoday.com/story/news/nation/2016/03/28/apple-justice-department-farook/82354040/
https://www.yahoo.com/politics/who-are-the-winners-and-losers-in-the-apple-v-fbi-192703478.html
http://www.newyorker.com/news/john-cassidy/lessons-from-apple-versus-the-f-b-i
http://www.npr.org/sections/alltechconsidered/2016/03/07/469527566/why-digital-security-is-an-arms-race-between-firms-and-the-feds

By Barbara Bridges, Associate Counsel

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