USA TODAY US Edition
Apple, FBI fight made for high court
Scope, fundamental importance make case hard for justices to avoid
The fight over iPhone privacy is just beginning, but its endgame may be the Supreme Court.
That’s partly because the classic battle between Apple and the FBI already has divided federal judges in San Francisco and New York, a sure sign of further divisions to come that the nation’s highest court would be called on to settle.
But it’s also because the issue is national in scope, of fundamental importance, and poses a new front in the skirmish between law enforcement and technology companies. In other words, it may be a hard case for the justices to avoid.
First, the fight must play out at the federal court level, followed by likely appeals. Apple CEO Tim Cook has said his company’s defense of iPhone users’ privacy is
“The fact that you now have got two different rulings in a very similar question goes to underscore how close a question it is.”
Stephen Vladeck, professor at American University’s Washington College of Law
worth an all-out battle.
The remaining question: If the government is on the losing side at the appeals court level, will it seek a Supreme Court showdown? That might depend on the disposition of its investigation into the San Bernardino, Calif., shootings. But even if the terrorists’ phones are no longer central to the probe, the Justice Department may deem the question worthy of the Supreme Court’s answer.
“It’s increasingly going to be up to the federal appeals court to sort it out, if not the Supreme Court,” said Stephen Vladeck, a professor at American University’s Washington College of Law. “The fact that you now have got two different rulings in a very similar question goes to underscore how close a question it is.”
University of Washington law professor Ryan Calo called the New York ruling “the first shoe to drop” among many to come. “Depending on how they drop, it could dictate that this case goes all the way to the Supreme Court, as Tim Cook has alluded.”
The high court is known for coming late to such old-school technology as e-mail, but it has shown a willingness in recent years to address the clash between the interests of police access and privacy rights — often siding with the latter.
That has prompted eight justices to prohibit the placement of GPS devices on suspects’ cars and declare the data inside cellphones and smartphones virtually sacrosanct from police searches. And just last year, they defended free speech on the Internet, even when it comes to an angry, selfstyled rapper whose rants made his wife, co-workers and others fear for their lives.