The Apple/FBI standoff in limbo: What’s next?

[Commentary] Benjamin Wittes of the Brookings Institution has charged that Apple’s position represents “The Very Definition of Digital Age Chuitzpah.” From his perspective, Apple — having refused to help the FBI de-encrypt the San Bernardino (CA) iPhone — should not expect any assistance from the government: “Apple has specifically put itself in an adversarial position vis a vis law enforcement . . . it is cheeky in the extreme to demand that the government now stab itself in the back and give up the fruits of the search its critics demanded it conduct.” Others argue strongly that the government has a responsibility to protect US citizens from software flaws that would expose them to repeated theft of private information. Underlying the new controversy, there is the legal question of what responsibility the government itself assumed regarding so-called zero-day flaws as a result of the Snowden revelations.

In 2014, in response to charges that the NSA sat on software flaws for many months (which the NSA vehemently denied), the Obama Administration introduced a new process, known as the Vulnerability Equities Process, for deciding when and under what circumstances “newly discovered” vulnerabilities will be kept secret. The details of the process remain secret, but it is likely that Apple will cite these rules if it now sues the government to obtain information regarding the San Bernardino iPhone flaw. The Apple-FBI battle is only at its midpoint, but with the introduction of the immensely complicated zero-day option, it is taking unexpected turns.

[Claude Barfield is a former consultant to the Office of the US Trade Representative]