The ongoing court battle between Apple and the FBI is just as much a fight over public opinion as a fight over legal precedent, and Apple’s biggest challenge may be to sell an anxious public on the benefits of encryption even as the government invokes visceral fears of terrorism.
At the center of the conflict is a locked, encrypted iPhone, a device that may hold clues to assist law enforcement in an ongoing investigation. But present also: a pair of ISIS-inspired villains, 14 innocent victims torn from their families, and an American technology company, long the most profitable in the world, refusing to hack the device on the grounds that doing so would jeopardize the privacy of its customers.
And on the other side of Apple is a phalanx of Obama administration officials warning of growing threats of violence from extremists in the U.S. and abroad.
Apple is renowned for its evocative ads, which pack a mix of youthful exuberance, wanderlust, and nostalgia. But educating the public on the complex interplay of constitutional law, the technological limits of law enforcement, and the politics of consumer privacy is very different from explaining the value proposition of the next iPhone. But it's equally if not more important; Apple needs to help the American people understand what’s at stake.
“First and foremost Apple has to stay true to its brand,” Jamie Moeller, director of global public affairs at Ogilvy, one of the largest marketing companies in the world, told BuzzFeed News. “One of those expectations is that their customers' data and their privacy won’t be compromised.”
In this highly politicized and emotionally charged dispute, Apple seeks to outmaneuver the nation’s most powerful law enforcement agency. Federal investigators, bound to fulfill their duties, are pushing hard against the company. And they’re joined by a national coalition of sheriffs and prosecutors who see robust consumer encryption as a threat to public safety.
From a public relations perspective, Apple’s defense is a tightrope walk, potentially fraught with allegations of callous self-interest for brand and bottom line. The Department of Justice knows this.
In its motion to compel Apple to obey the court order in San Bernardino, forcing the company to help the FBI break into the locked iPhone, government lawyers described Apple’s noncompliance as nothing more than a publicity stunt “based on its concern for its business model and public brand marketing strategy.”
The test for Apple then is defending its reputation without fueling the government’s claim of grandstanding. One way to do this, Moeller said, is for Apple to point to trusted sources who share its position. “They need to be supported by third parties who can talk about the very real consequences of a lack of encryption,” he said.
This would also allow Apple to broaden the debate beyond one specific investigation, and beyond the United States, inviting a public policy discussion that both the FBI and privacy advocates are eager to have.
While the benefits of robust encryption are real, and even praised by Apple’s fiercest critics, consumer privacy is still a relatively abstract, intellectual idea. It’s not a platform-birthing product.
“It’s like an anti-Apple brand promise,” Alex Slater, managing director of Clyde Group, a D.C. communications firm, told BuzzFeed News. “Apple promises simplicity and user understanding, but their whole challenge with this is to tack to the other side, to this detailed policy debate.”
Apple’s lawyers have not shied away from this. They released their formal response to the government’s court order a day before the deadline. They also wrote it in plain language to maximize public engagement.
Neither has Apple’s chief executive, Tim Cook. Long before “#AppleVsFBI” became a hashtag, Cook was an outspoken proponent of strong consumer encryption. And he was vocal about it at a time when both his peers in Silicon Valley and President Obama appeared to some as conspicuously silent on the issue. In an infamous speech last summer, Cook framed his company as a pillar of privacy in a landscape of data gobblers.
“I’m speaking to you from Silicon Valley, where some of the most prominent and successful companies have built their businesses by lulling their customers into complacency about their personal information,” Cook said. “They’re gobbling up everything they can learn about you and trying to monetize it. We think that’s wrong. And it’s not the kind of company that Apple wants to be.”
After trying to differentiate Apple from the Facebooks and Googles of the world, Cook then trained his gaze on a more classically Orwellian institution: the surveillance state. “Removing encryption tools from our products altogether, as some in Washington would like us to do, would only hurt law-abiding citizens who rely on us to protect their data,” he said. “The bad guys will still encrypt; it’s easy to do and readily available.”
Cook has remained near the center of the encryption debate, appearing in an interview on 60 Minutes in December, and more recently on ABC. But some have questioned the efficacy of Apple’s bold response to the government’s demands in San Bernardino.
During a congressional hearing last Tuesday, which lasted over four hours, several lawmakers portrayed Apple as an obstructionist and interloper — a headstrong corporation standing in the way of answers, and some measure of justice, for the families of San Bernardino.
“All you’re doing is saying ‘no, no, no, no,’” Rep. Jim Sensenbrenner said at the hearing.
Rep. Trey Gowdy described Apple’s stance as promoting warrant-proof technology, creating “evidence-free zones” that circumvent the system of lawful searches enshrined in the Constitution and bounded by the Fourth Amendment.
At one point, Apple’s chief adversary, FBI Director James Comey, said simply, “They sell phones. They don’t sell civil liberty.”
Slater argues that Apple’s public defiance may have backfired. “Maybe the FBI fired the first shot,” he said, but “Apple sort of backed themselves in the corner by raising the stakes here.”
Rather than protest the FBI’s claims through lobbyists in private or surrogates in the press, Apple seems to have chosen a dramatic confrontation for public consumption, with Cook out in front, Slater observed. “A rule of crisis communication, that’s often unsaid, would be to try and avoid the crisis in the first place.”
Moeller disagrees. “There are times when the CEO needs be the one carrying the message. And that’s in times of serious and, in some cases, existential crises.”
Even as an Avengers squad of Silicon Valley juggernauts rallies around Apple, filing several amicus curiae, or friend of the court briefs, supporting Cook’s arguments, a brigade of law enforcement associations and government lawyers has rushed to the FBI’s side — seizing on the popular narrative that Apple, willfully or by consequence, is helping dangerous people run free. Some of the families whose relatives were killed in San Bernardino have also questioned Apple’s motives. A lawyer representing them described Apple’s position as a tedious “parade of privacy horribles.”
“Apple is conflating many different policy debates for the dual purposes of excusing itself from compliance with current law and protecting its public image,” wrote Stephen Larson in a brief on behalf of the families.
Apple believes it can persuade the public. And while it can’t tap into the rhetorical power that comes from combatting ISIS or shielding the public from violent criminals, Apple is positioning itself as a guardian of the American people nonetheless, touting the importance of computer security against the backdrop of seemingly endless data breaches and increasingly tech-savvy terrorists.
“The sleeper argument in all of this is going to be to take the case to the American people: that strong encryption keeps you safe,” Sen. Ron Wyden told BuzzFeed News. “And if you undermine it, you’re going to be giving a huge gift to a lot of people who represent real threats.”