I recently posted this on Medium, which I’ve begun gravitating to for my blogging. In the last 36 hours or so, it’s garnered a couple of thousand views, which kind of blows me away, and has also turned my Twitter Mentions feed into a smoking garbage fire. I’m re-posting it here for posterity.
Following a long fight with the feds, Apple’s Tim Cook issued a sharp public retort to the FBI yesterday in the form of “A Message to Our Customers”:
The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.
The whole letter, which is not that long and worth reading, goes on to state Apple’s objection to the FBI’s request to essentially create a new, custom version of iOS that they can use to defeat the security on a recovered iPhone 5C from the San Bernardino terrorists.
The real crux of this question, of course, turns on the core of one of the tech industry’s biggest current controversies: government access (or “surveillance,” depending on your framing of the issue). Should the government — in whatever its form — be able to gain access to data on your smartphone?
To have an informed opinion on this debate, you need to know what the Fourth Amendment actually says.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment does not immunize anyone against government searches of their “papers and effects” — it merely says that any searches that occur cannot be “unreasonable,” and must be supported by a warrant.
There is lots of constitutional case law that explains how this right is interpreted today. Just in case you are not a con law geek like I am, the controlling precedent here is in Katz v. United States (Fourth Amendment applies where there is a reasonable expectation of privacy); Smith v. Maryland (information given to third parties invalidates an expectation of privacy) and United States v. Jones (what constitutes a “search” or “personal effects”).
In a very short period of time, we have transformed into a world completely mediated by electronic communications sent over, and with, third-party cloud services. This is a world that existing privacy law and Constitutional case precedent is utterly unsuited for (yet another reason, by the way, why “original intent” is a plainly bogus legal theory). Sooner rather than later, the Supreme Court must develop a coherent approach to this issue; because in the interim, law enforcement at all levels of our government are left guessing and grasping about what is appropriate, useful, and even legal as it relates to gathering electronic data.
But bear in mind: at no period in American history has there ever been any personal information, let alone any whole class of information, that was ever considered wholly immune to government access. The government has been wiretapping for a century. The FBI accessed bank records to catch mobsters in the 30s. Location tracking — the old-fashioned way, in person — is as old as government itself.
Clearly, smartphone users have a “reasonable expectation of privacy” over what’s stored on their phone, in their email, or in electronic records, and Supreme Court case law must eventually recognize that. But that’s not really the point here at all. There is nothing magical about your iPhone that turns it into a legal black box. The only difference between it and your Ma Bell telephone is technology that enables it to “go dark” to observers, even with a legitimate need by law enforcement.
In every liberal democracy, there is a balance between the need for strong civil liberties and the maintenance of safety and order. We inevitably give up some freedoms in the name of public safety: I cannot drive 100 mph on the highway, fire a howitzer in my backyard, or bring shovelfuls of tropical dirt home from overseas (at least without a lot of oversight).
Forget terrorists. (But actually don’t, because that matters too.) When common criminals — drug dealers, pimps, gangs, and certainly their white collar counterparts — start using smartphones that keep all of their contacts, communications, networks and data inaccessible to law enforcement, where does that leave us as a society? The potential for public harm is obvious and irrefutable.
Suggesting that there is no balance to be found between the needs of our civil liberties and legitimate law enforcement is cynical defeatism, and smacks of more ideology than pragmatism. This cynicism is, at least in part, a reaction to the issues of the day: the Snowden revelations of wanton overreach by the intelligence community, and the ongoing failures of our criminal justice system that fill our headlines. These are understandable and legitimate concerns that many reasonable people share. Yet cooler heads must balance these concerns by the obvious need for law enforcement to do its job in the modern era.
Ultimately, it is not Apple’s job to please the government. Rather, it is the government’s job to keep its people safe. Part of that could entail requiring that smartphone manufacturers, at a minimum, do not ship unbreakable encryption on their devices as a default setting. Smart techies will surely build custom encryption anyway, as they long have, and there’s no way to stop that even if you wanted to. Yet there is a vast gulf of difference between the availability of hard encryption available somewhere on the internet, versus shipped as a default on every iPhone.
Unfortunately, this issue seems doomed to be judged in the no-man’s-land between the internet’s activist echo chamber and the U.S. government’s utter dysfunction and political tribalism; which is to say, it won’t be “solved,” per se, at all. I beg, instead, for the highest value of the American system:pragmatism. Modern technology is changing our society, and must inevitably change our government and how we keep our society safe, too. So in this new world: what works?
I doubt the answer is turning off all the lights.