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Why It’s in Apple’s Best Interest to Compromise on Encryption

Apple has said Congress, not the courts, should define how much it has to help the FBI. So it should begin talking about what smart legislation might actually look like.

Updated March 10, 2016, at 12:36 p.m.

If a bill pending in France is any indication, Apple would be wise to suggest more constructive potential legislative solutions to the question of whether and how law enforcement can get access to encrypted devices.

Apple has been pushing back on the FBI’s contention — upheld in several but not all courts — that a 1789 law called the All Writs Act should force the company to help investigators get evidence from criminals’ phones. Apple contends that the All Writs Act shouldn’t be used as a stand-in for Congressional action — that it shouldn’t compel activity that Congress has not itself demanded.

The French National Assembly.

Okay, so Congress needs to step in. But what should it do? So far Apple has proposed nothing specific, only that a commission “or other panel of experts” discuss the implications. This caused some friction when Apple general counsel Bruce Sewell testified to the House Judiciary Committee on March 1. As the McClatchy news organization reported, representative James Sensenbrenner asked Sewell why Apple had no specific proposal to suggest. “All you have been doing is saying no, no, no, no,” Sensenbrenner said. “I can tell you I don’t think you’re going to like what comes out of Congress.”

Indeed, a bill making its way to the U.S. Senate could impose penalties on companies that refuse to comply with court orders mandating some kind of access to encrypted phones. Similar bills exist in other countries too. An amendment introduced last week to one such bill in France would even carry jail time for executives who fail to comply. That measure could get watered down, but even earlier proposals in France have made some onerous and probably unnecessary demands on tech companies.

That’s what happens in the absence of a pragmatic middle ground. But will it be possible to find one?

Several authorities on privacy and communications law say they could envision genuinely smart legislation on this. There could be a bill that, for example, does not allow the government to maintain master keys to computer systems and does not dictate specific methods of getting into phones. It might instead require a company like Apple to assist investigators when they have a warrant, while putting limits on just how extensive the assistance has to be. A bill might also clarify whether and when cops can compel you to reveal your passcode during an investigation.

Legislation like this might go too far or might not go far enough. But you don’t need a commission to tell you that this kind of middle ground is already there to be thrashed out.

(Read more: Lawfare, Reuters, Agence France-Presse in the Guardian, “Apple’s Code = Speech Mistake”)