Apple is losing the PR war with the FBI

Apple needs an upgrade ā€“ to its public relations strategy.

The tech giantā€™s intensifying standoff with the FBI, over whether to unlock an iPhone used by the San Bernardino man who, along with his wife, is accused of killing 14 people last year, has an unmistakable element of theater. The government, which is investigating hundreds of crimes involving locked iPhones, apparently chose the San Bernardino case as its stalking horse against Apple (AAPL) because it believed the public would be sympathetic to its argument. Apple, normally secretive about its plans and strategies, posted a detailed response to the FBI online. Both sides will have their say in court on March 22.

But public opinion matters too, and Apple may be heading for a setback before it ever gets to the courtroom. Some family members of the San Bernardino massacre victims, for example, are siding with the FBI in asking Apple to unlock the phone. A new poll by Pew Research shows 51% of Americans agree with the FBI on the matter, while just 38% back Apple. Prominent law-enforcement officials, such as New York police commissioner William Bratton, are mounting common-sense arguments for why Apple should give in. Even Donald Trump weighed in, calling for an Apple boycott until it assists the FBI.

The complicated case puts Apple in a position itā€™s not accustomed to: playing defense. Hereā€™s why: The FBIā€™s argument is simple and straightforward. Syed Rizwan Farook, who pledged loyalty to the Islamic State terrorist group, was part of a husband-wife team that murdered 14 people at an office party on Dec. 2. Farookā€™s iPhone might contain information on how the team carried out the plot, and perhaps reveal other terrorists. The FBI needs Appleā€™s help to see whatā€™s on the phone. Without it, the data will either be deleted or permanently locked away.

If it werenā€™t an encrypted smartphone, the governmentā€™s request would be uncontroversial. As a society, weā€™ve basically accepted the governmentā€™s right to access private information when itā€™s part of a criminal investigation, or necessary for national security. Law enforcement agents have been searching homes, pulling bank records and tapping phones for a long time. Objections arise when the government seems to exceed its authority, but not when itā€™s doing what itā€™s supposed to do.

Apple has decided to tackle the unenviable job of convincing the public that protecting the privacy of terrorists and criminals is somehow in the public interest. Apple might very well be right; there are many instances in which we tolerate problems because the rules required to prevent them would exact a cost we deem too high. Thatā€™s basically the argument gun-rights advocates make when they say banning guns would impede Constitutionally guaranteed rights, even if it would lead to a reduction in violence. A less provocative example might be the requirement for a unanimous jury verdict in federal court cases, which lets some crooks off the hook but also safeguards civil liberties.