By: Rachel Rice
“Our decision to conclude the litigation was based solely on the fact that, with the recent assistance of a third party, we are now able to unlock that iPhone without compromising any information on the phone,” U.S. attorney Eileen Decker stated after the FBI dropped its pending lawsuit against Apple. In the days after the legal battle ended, Apple responded with a statement of its own, saying that “the ‘backdoor’ into its phones sought by prosecutors ‘would set a dangerous precedent’” and that the “case should never have been brought.”
Who should govern cyberspace? Under what circumstances are governments justified in controlling cyberspace? Reflecting on the “global debate following revelations by former NSA-contractor Edward Snowden” and the recent controversy between the U.S. Government and Apple, Professor Scott Shackelford addresses these important questions in his forthcoming publication, iGovernance: the Future of Multi-Stakeholder Internet Governance in the Wake of the Apple Encryption Saga (Hereinafter, “iGovernance”).
Scott Shackelford is a professor at Indiana University where some of the courses he teaches are cybersecurity law and policy, international business law, and sustainability. He is a National Fellow of the Hoover Institution at Stanford University and a senior fellow at the Center for Applied Cybersecurity Research. Professor Shackelford graduated from Stanford Law School and received his Masters degree and PhD at the University of Cambridge. He has authored more than seventy articles, essays, and book chapters. Leading news organizations such as National Public Radio, Newsweek, The Atlantic Wire, and Politico have discussed Professor Shackelford’s research. Professor Shackelford has also presented his work on cybersecurity in a variety of forums, including NATO, the Prime Minister and Cabinet Office of the Government of Australia, and the Harvard Business Review.
Most recently, Professor Shackelford presented his research to the University of North Carolina’s International Law Journal at its annual symposium in November 2016. His presentation focused on his forthcoming publication, iGovernance. The paper addresses the issue of how the Internet should be governed and the results of the “Apple encryption saga and what it portends for the role of the emerging private and public power centers in shaping the future of polycentric Internet governance.” iGovernance recognizes that today’s day and age is “often defined by cyber insecurity,” an issue which “is central to enhancing global equity, security, and privacy online.”
A large part of Professor Shackelford’s presentation was dedicated to a discussion on the Apple Encryption Saga after the San Bernardino shooting. He initially mentioned that this was a “bad facts case,” meaning that the nature of the surrounding circumstances led to a decision with bad precedent. Professor Shackelford stated that the theme of the case was that we are continuing to see signs of United States rhetoric toward rules of law, but there are questions as to whether or not the actual behavior of the government is consistent with that. The Apple case is troubling because if we are looking for clear poli-centric solutions, the U.S. is probably losing trust with negotiating partners.
Professor Shackelford suggested that one way to analyze the Apple case is through cybersecurity globalization. He mentioned that Russia and China have more one-sided approaches. Both countries have used a rhetoric of anti-terrorism to justify new laws that force or compel compliance by companies to assist the government in encryption. Moreover, Russia requires companies to hand over encryption keys and requests that telecom and Internet companies play significant roles in assisting the government. Russia has fined individuals and firms that are caught using unauthorized forms of encryption or refuse to assist the government. Professor Shackelford noted that there has been some pushback by Virtual Private Networks (VPNs), such as Skype and Viber, after some security companies have assisted the government to hack into their programs. China has dialed these same measures back a little, but it is unclear whether these differences actually have significance. The bottom-line with cybersecurity globalization is that there are huge implications moving forward for tech sectors and the government.
The biggest takeaways from Professor Shackelford’s presentation are that developments are occurring with ongoing treaty negotiations and norm building, defining corporate responsibility for safeguarding critical infrastructure, and national best practices. The next steps for the private sector include proactively investing in enhancing cybersecurity, assessing current insurance coverage, and seeking out partnerships to share threatening information.
 Joel Rubin, James Queally & Paresh Dave, FBI Unlocks San Bernardino Shooter’s iPhone and Ends Legal Battle with Apple, for Now, L.A. Times (Mar. 28, 2016, 10:39 PM), http://www.latimes.com/local/lanow/la-me-ln-fbi-drops-fight-to-force-apple-to-unlock-san-bernardino-terrorist-iphone-20160328-story.html [https://perma.cc/3DST-XYDS].
 Scott J. Shackelford, Eric Richards, Anjanette Raymond, Jaclyn Kerr & Andreas Kuehn, iGovernance: the Future of Multi-Stakeholder Internet Governance in the Wake of the Apple Encryption Saga, 42 Univ. N. Carolina J. Int’l L. (forthcoming 2017) (manuscript at 1).
 Faculty & Research: Scott Shackelford, Indiana Univ. Kelley Sch. of Bus., https://kelley.iu.edu/facultyglobal/directory/facultyprofile.cfm?id=19196 [https://perma.cc/3YZQ-SQA4 ] (last visited Nov. 15, 2016).
 Shackelford et. al., supra note 3.
 Id. (manuscript at 1).