In Nod to Law Enforcement, Obama Ends Attempt to Straddle Privacy Divide

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For years, President Obama has struggled to reconcile a civil libertarian’s belief in personal privacy with a commander-in-chief’s imperatives for the nation’s security.   This week, security won…

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President Obama, during a reception in the East Room at the White House on Thursday, has sought to straddle the line between technology companies and law enforcement. Credit Zach Gibson/The New York Times

Washington — For years, President Obama has struggled to reconcile a civil libertarian’s belief in personal privacy with a commander-in-chief’s imperatives for the nation’s security.

This week, security won.

The decision by Mr. Obama’s Justice Department to force Apple to help it breach an iPhone used by one of the San Bernardino terrorists has ended, at least for now, the president’s attempts to straddle the feud over encryption between Silicon Valley and law enforcement.

Asked about the president’s backing of the Federal Bureau of Investigation’s inquiry into San Bernardino, one of the worst terror attacks in the United States since September 11, 2001, Mr. Obama’s press secretary declared on Wednesday that “the F.B.I. can count on the full support of the White House.”

The decision may have been all but inevitable for Mr. Obama, who every morning receives a classified intelligence briefing about the terrorist threats facing the United States. But he took the position after years of trying to find middle ground on the issue.

In a meeting with technology company executives in the Situation Room last spring, Mr. Obama pleaded with them to allow national security and law enforcement officials some access to private data, according to one participant in the room. In an interview last year with Re/Code, a technology website, Mr. Obama lamented being stuck, “smack-dab in the middle of these tensions.”

“I think he realizes there’s no clear-cut answer here,” said Representative Adam Schiff of California, a Democrat who serves on the House Intelligence Committee. “But if ever there was going to be a nod to the law enforcement view, this was the one to do it.”

For much of his presidency, Mr. Obama has been unwilling to become a champion for either side, even as technological advances in encryption made a clash between privacy and security inevitable.

After Edward J. Snowden exposed some of the government’s most secret surveillance programs in 2013, the president repeatedly expressed support for the protection of user data on iPhones and other devices. But he also acknowledged the “legitimate need” to penetrate encryption, especially during terror investigations.

Starting in 2010, top law enforcement officials for Mr. Obama, including officials at the F.B.I., began pushing for legislation to force technology companies to ensure that law enforcement agencies could have access to personal data. By 2015, Mr. Obama’s administration had backed away from support for a new law, saying the president preferred to seek cooperation with Silicon Valley instead.

Mr. Obama has a close relationship with Silicon Valley — he has dinners with its tech titans and raises money there, — but like his predecessors, he has been torn by the responsibilities he faces every day: securing the country against terrorists, supporting criminal investigations and prosecuting a war against extremists who are increasingly turning to encrypted technologies to evade detection.

“There are times where folks who see this through a civil liberties or privacy lens reject that there’s any trade-offs involved, and in fact there are,” Mr. Obama said in the interview with Re/Code. “We can’t pretend that there are no trade-offs whatsoever.”

Several former Obama administration officials said they believed the president personally leaned, at least slightly, toward the view that technology companies must be allowed to secure personal data if they want to earn the trust of their customers.

He also understands, they said, the problems that could arise if governments like China and Russia demand the same backdoor access to American technologies that the F.B.I. wants. In the same interview, he said, “I lean probably further in the direction of strong encryption than some do inside of law enforcement.”

But some civil libertarians view Mr. Obama as, at best, a weak supporter of their views and one who has too often been swayed by his national security and law enforcement apparatus.

Some of those civil libertarians said Thursday that Mr. Obama’s vocal support for the F.B.I.’s aggressive legal tactics against Apple were evidence that the president is too willing to accede to the demands of his national security advisers. Tim Cook, the Apple chief executive who in the past has expressed deep respect for Mr. Obama, has vowed to fight the order.

“This is yet another disappointment in a string of disappointments when it comes to privacy,” said Kevin Bankston, the director of the Open Technology Institute at the New America Foundation.

Mr. Bankston said the F.B.I.’s decision to choose the San Bernardino case to press, legally, had been a smart way to put pressure on Mr. Obama and the technology companies. But he urged the president to consider the broader implications for privacy if Apple loses the case.

“The fact that it’s linked to the shootings makes it much more difficult politically,’’ Mr. Bankston said. “But the answer is to highlight that it’s not just about this case. It’s about every encrypted device.”

Mr. Schiff said the specifics of the California case might provide courts with the ability to narrow that impact. The phone in the case was owned by the terrorist’s employer, who has given permission for law enforcement to search it. To do that, officials need Apple’s help. If courts agree with the government, they might attempt to apply their ruling in limited cases.

Regardless of the outcome of the case, any final resolution is unlikely to come before Mr. Obama leaves office early next year — timing that in some ways works for the president.

“Taking this case to the courts buys the administration a bit more time on these issues,” Mr. Schiff said. “This is a very challenging issue for the administration. There simply is no easy answer.”


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