On the day a few weeks ago when Apple publicly opposed the government’s order to help investigators in the San Bernardino attack, Silicon Valley was still choosing sides. It all played out on Feb. 26, in a dull conference room in an office building just blocks from the White House, where representatives of the biggest technology companies in the world wrestled with uncomfortable questions of how — or indeed whether — to weigh in on the emotionally charged case.
The tense two-hour-long session on a Friday afternoon attracted some of the industry’s most influential lobbyists — among them IBM’s Christopher Padilla, a former under secretary for international trade at the Commerce Department, and Microsoft’s veteran government affairs chief, Fred Humphries. For purposes of secrecy, there was no conference call number.
“There was an initial discussion about whether to move forward on this particularly sensitive case,” said one of the meeting’s participants. “But everyone decided that the stakes were too high to sit this one out.”
It wasn’t clear from the start of the InformationTechnology Industry Council meeting that they would act at all. The decision to file a supportive friend of the court brief wasn’t reached until the working group session was in its final 15 minutes, say sources.
Oracle, a company headed by Apple co-founder Steve Jobs’s longtime friend Larry Ellison with deep ties to the intelligence community, raised questions about taking an absolutist position in this case, according to sources. The company supports Apple in its defense of encryption, but doesn’t share the view that smartphones should be beyond the reach of any subpoena.
Other major companies — Amazon, Cisco, Google, Facebook, Microsoft and Twitter — affixed their names to filings supporting Apple’s position, prominently taking their rival’s side in the high-stakes battle over encryption and security. Apple is expected to file another document with the court Tuesday, responding to the government’s latest brief — which blasted the company for its “false” rhetoric. The war of words is growing increasingly acrimonious. Both sides make their arguments in federal court on March 22.
This Isn’t the Battle the Tech Industry Wanted to Fight
Silicon Valley’s lobbyists in Washington, D.C., had been working quietly to educate legislators about the value of encryption when, in the words of one, “this huge bomb gets dropped.”
“In the middle of all this very significant headway into making folks understand encryption back doors are a bad idea, this huge bomb gets dropped on a bad set of facts,” said one Washington, D.C., technology lobbyist. “This has the potential to set us back in our efforts to protect overall security.”
Behind the scenes, an attorney who counts prominent technology companies among his clients worked to defuse what appeared to be a difficult set of facts. The attorney spoke with various technology companies, pointing out that the implications of this case went well beyond a single device or an isolated instance.
If Apple could be forced to develop software that disables the security features on its phones, what’s to stop the government from asking, say, Adobe to change its Acrobat Reader to make it easier to hack computers, or an Internet-of-things company like Nest to turn its thermostats or security cameras into surveillance tools?
“Everybody sort of initially saw this as a standard FBI request that went public,” said Box Chief Executive Aaron Levie. “Then, once you saw how Apple responded, you recognized the gravity of the situation and what the FBI was asking Apple to do.”
Silicon Valley began lining up.
WhatsApp CEO Jan Koum was the first tech executive to publicly back Apple, saying, “We must not allow this dangerous precedent to be set.” The government is trying to resolve a standoff with the messaging app, whose encryption makes it impossible for investigators to eavesdrop on conversations, according to the New York Times.
Google’s Sundar Pichai, Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey weighed in, followed by Microsoft’s Brad Smith. They argued the case would set a dangerous precedent if law enforcement wins in court what it has yet to achieve in Congress — namely, the ability to require a technology company to create a back door to encrypted devices.
Apple will need all the help it can get — in court and in Congress — as it combats renewed calls for encryption back doors.
The powerful leaders of the Senate Intelligence Committee — Senators Richard Burr and Dianne Feinstein — are expected to introduce legislation as soon as next week, imposing civil penalties on companies that refuse to comply with court orders to help investigators access encrypted data, Reuters reported.
Apple enjoys a certain halo in Congress, where members admire the American company’s rousing comeback story and its products. Even President Obama uses an iPad. But the company’s approach to Washington, D.C., is best captured by its memorable 1997 advertising slogan “think different.”
The company views itself as a Capitol Hill outsider — a company that’s not “of” Washington, and doesn’t play that way, in the words of one person familiar with Apple’s thinking. And that’s not necessarily a good thing when trying to influence policy.
Microsoft, Google and Facebook maintain a robust presence in Washington, D.C. These companies are active in trade organizations, their executives offer testimony before Congressional committees and they make campaign contributions and support Political Action Committees.
Apple, not so much. While Chief Executive Tim Cook is more visible in the nation’s capitol than his predecessor, Jobs, the company spends less on lobbying (about $4.5 million last year) than Google parent Alphabet ($16.7 million) or Facebook ($9.9 million), according to the Center for Responsive Politics.
Until it hired former U.S. Solicitor General Ted Olson to represent the company in its escalating battle with the Justice Department, Apple even lacked a household-name advocate based in the nation’s capitol, arguing its case in court — and in the national media. Former Environmental Protection Agency head Lisa Jackson handles government relations out of Cupertino.
That may explain why Cook took his case directly to the public: Its customers.
“This case is about much more than a single phone or a single investigation, so when we received the government’s order we knew we had to speak out,” Cook wrote in an email to Apple employees. “At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone’s civil liberties.”
It remains to be seen whether this Mr. Outside approach will influence the insider world of Washington’s Beltway, where the public debate over encryption will continue to play out. In what may be an ominous sign, President Obama condemned what he called an “absolutist view” of encryption by privacy advocates.
This article originally appeared on Recode.net.