I was astonished to learn this morning that Apple was fighting a federal magistrate’s order in connection with the investigation of the San Bernardino shootings. I had assumed that Apple would comply without reservation. Instead, Apple wrote in an open customer letter:

“The FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.”

The reasons I expected Apple would comply with the order were that: 1) This is a critical homeland security issue; and 2) Privacy is dead (as written in a 2014 Forbes article) and so too are the San Bernardino terrorists.

As Apple fights the court order, many people are weighing in on both sides of the issue. On the one hand, given the very real terrorist threat to the country, some argue the government needs to have the access and power to obtain programs that can unlock encrypted devices. Ideally, if Apple were to comply, in the future, police would request an electronic warrant to unlock an encrypted phone. This would adhere to the letter of the law while giving security agencies the critical information they need to combat and prevent terrorism.

Yet, there is also an economic security argument. Why would Apple (or any other tech company) spend time and money so government agencies can potentially have unfettered access to their devices? In the aftermath of NSA whistleblower Edward Snowden’s leaked information about the data gathering activities of U.S. security agencies, many consumers cried foul against the technology companies that had willingly handed over customer data (without informing customers they were doing so). From Apple’s perspective, fighting the court order has a marketing benefit. Apple can promote their devices as being secure against the prying eyes of the likes of the NSA, DHS, the FBI, and the CIA.

The homeland security argument is paramount, but the economic security arguments should not be ignored. Congress should do the legislating, not the courts. At the end, this is a case of whether an individual’s privacy may be superseded by national security and the need for law enforcement to investigate crime and protect the public at large. If our government needs a court order to get Apple to provide needed information, then perhaps there isn’t a law on the books mandating Apple to provide this. That seems like an example of, at best, court overreach, and at worst, legislating from the bench.

I hope that as the debate continues, a compelling public safety argument is made for having this kind of access (especially since the two individuals are dead), an argument that wins out over fears of unrestricted government access to private data and communications.