Apple and the FBI are set to battle in court for the first time on Tuesday over the San Bernardino shooter’s locked iPhone.
The government is trying to force Apple to unlock an iPhone used by Syed Farook, one of the two assailants who killed 14 people in last December’s terror attack.
{mosads}The request has sparked weeks of vitriolic back-and-forth between the Justice Department and the tech giant. Apple says complying would create a dangerous “backdoor” that could expose all iPhones to hackers. The FBI insists it just wants access to this one phone.
The outcome of the case could set an important precedent in the fight over whether law enforcement should have guaranteed access to encrypted communications — an issue Congress has not weighed in on despite a bevy of legislation and a newly established working group.
There are few clues how Judge Sheri Pym will rule, but observers backing both sides will be watching her carefully during Tuesday’s proceedings to see if she tips her hand.
“You can read the tea leaves a bit depending on what questions the judge asks,” said Lisa Hayes, a former litigation partner who now oversees court strategy for the Center for Democracy and Technology.
“Of course,” she added, “you can always read the tea leaves incorrectly.”
In a new twist revealed last week, Pym will hear testimony and cross examination of as many as four witnesses, two from the FBI and two from Apple.
Apple attorneys told reporters last week that the request for witnesses had come from the FBI. Apple will make two of its top employees available for testimony, including its top cryptography architects and the company’s global law enforcement manager, who has worked with the FBI on the case, the company said.
The FBI has not said who will testify from its side.
The hearing will likely be an event of unprecedented attendance and attention for the federal courthouse in Riverside, Calif., which advocates and media alike descending on the city from around the country.
The hearing room can only accommodate 54 people, and 18 seats are already reserved for Apple and the government, Pym said in guidelines issued about the hearing. The court has set up an overflow room that will house another 324 people.
But even those numbers will strain the modest court. Pym warned that security can only handle roughly 50 people an hour, meaning hopeful spectators could still be stuck in line as the hearing gets underway.
Outside the courthouse, a prominent digital rights group has planned a day of protests against the government’s request.
The group, Fight for the Future, said on Monday it had collected over 20,000 comments backing Apple through a website launched to help organize the event, SaveSecurity.org.
Protesters will read and display the statements throughout the day.
Other Apple supporters, such as the American Civil Liberties Union (ACLU), will be on hand at the courthouse to publicly defend the company to the press.
“The outcome of this case could not be more important for the future of privacy and security in the digital age,” said Alex Abdo, an ACLU staff attorney. “If the FBI wins, it will have gained the power to force the tech companies to hack their customers. This is a reckless pursuit.”
Legal experts say that Pym will likely be swift in issuing her written ruling on the case — some suspect she could act as soon as Wednesday.
“There are lots of reasons for this to be resolved in as expeditious a manner as possible,” said Ed McAndrew, a former federal cybercrime prosecutor and current partner at Ballard Spahr.
“Number one, this is an ongoing criminal investigation, so there’s time sensitivity relating to that,” he said. “Number two, there’s immense public interest and concern. And number three, it potentially impacts other cases — this isn’t the only iPhone that the government needs Apple’s help to search.”
But Pym’s decision will almost certainly not be the end of this dispute. No matter who prevails, the other side is expected to appeal at the district court level. The case is widely expected to proceed to the Supreme Court level, although whether the court will choose to take it up is still unclear.
“No matter how tomorrow’s oral arguments come out, no matter how the judge finally rules, this will not be the end of this case,” Hayes said. “This is just one more step along the path.”