Apple may very well lose this thing. What will that look like for us?
Encryption1 is all around you. If you have ever used a credit card, online or off, you’ve benefitted from encryption. Does the FBI really want to compromise all commerce? Of course not.
Is the FBI staffed by idiots and buffoons? Probably not. But they also know what the legislation will look like when this is done. If they win this case, they will ask Congress to adopt the court’s decision as part of Federal law. If they lose, they’ll ask Congress to overturn the court with a new Federal law. Either way, that’s the end-game. This case is all about softening up the public with The Terraists.
I expect that new law will carve out an exception for certain activities. These will need to be licensed by the government, ignoring the gross anti-federalist overreach that will stretch the Commerce Clause to its theoretical limit.
Banks will be licensed for strong encryption. Friendly telecoms probably will. But end users? No way. The rest of us will get the broken version we currently have, or a Pro version where you have to agree to store your master key in a government-run escrow. In that case, see Footnote 1, above.
Using Strong Encryption will become a new Federal crime. It’ll be up there with Perjury and Obstruction of Justice. Get arrested for something and happen to have an iPhone with unlicensed/unregistered Strong Encryption? That’s a paddlin’.2
More thoughts later when I have time (including why Apple has to argue under the 1st Amendment and not the 4th).