Why The FBI Chose To Try The Apple Encryption Case In The Media

Cases like the one between the FBI and Apple are usually held under seal in national security courts like the Foreign Intelligence Surveillance Act (FISA) courts, so the public never knows about the proceedings and outcomes, points out Peter Y. Fu, an attorney in the cyber risk management group at Cooper Levenson in Atlantic City (NJ). But the court in which the FBI won its order is a public court — a federal district court in the Central District of California.

Some of the records in the case remain under seal, but the order regarding Apple is public record, as are the briefs and motions that came afterward. So the media, as it does around everything involving Apple, has swarmed over every detail. The court order has dominated headlines in the last week. In sealed cases, the attorneys on both sides are afforded the chance to hash out an agreement in private. Had the current case been kept under seal, Apple may have been more willing to create a one-time hardware or software key to unlock Farook's iPhone. The knowledge that such a key existed would never have been made public, could never have been known to cyber thieves and other bad actors. It's also possible that Apple rejected that request weeks ago, and only then did the FBI seek an order in a public court. Either way, the FBI's choice of court was a surprise. "They went nuclear pretty quickly," Fu said.