“The Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” These were not the words of a radical social justice warrior from “Black Lives Matter,” or even a liberal Democrat in Congress. They were the deliberate and percipient observations from one of the most substantive and constitutionally faithful of Supreme Court Justices -- the late Antonin Scalia.
The tragedy of Scalia’s untimely passing is amplified by the need for voices such as his in the current fight between iPhone manufacturer Apple and the federal government, over forced access to an encrypted phone belonging to one of the dead San Bernardino terrorists. The government claims its demand that Apple break into the phone by overriding the built-in privacy protections is “reasonable” and necessary in order to protect national security. Apple maintains what Uncle Sam demands is not reasonable; and would establish a precedent that would result in harm to the company, its millions of customers, other U.S. manufacturers of “smart phones,” and ultimately the U.S. government. One can almost hear Scalia’s voice calling the government’s case against Apple, “pure applesauce.”
Before digging deeper into the government’s current dust-up with Apple, it is important to note that this fight is nothing new; it is simply the latest chapter in a decades-long push by Uncle Sam to gain access to Americans’ digital technology and place this booming sector of our economy under its thumb.
In 1994, for example, Congress passed the Communications Assistance for Law Enforcement Act (CALEA); which for the first time forced telecommunication carriers and manufacturers to deliberately modify their communications platforms and hardware for the sole purpose of facilitating the government’s ability to surreptitiously monitor communications made over those networks. The government (in particular the FBI), not satisfied by merely having a “back door” built into digital communication platforms for its convenience, also pushed Congress for legislation that would force private companies to provide encryption “keys” so that, if necessary, it always has a way to access the data on those networks. In those pre-911 days, Congress resisted such unnecessary and improper power grabs.
What makes the current debate with Apple different and more alarming, is that the government is for the first time demanding that a company actually invent a way to defeat the very encryption safeguards it builds into the devices it sells. Attorney General Lynch has taken to citing an obscure law, the All Writs Act of 1789, to justify this unprecedented exercise of power to compel companies to do the government’s work for it.
The debate over Apple’s reluctance to cooperate with government demands has to some degree been intentionally obfuscated in a swirl of techno-jargon about “encryption keys,” “brute force access,” and “backdoors.” Although these may be accurate details about the technical aspects of the debate, they have little relevance to the more important policy and constitutional impact of what is at stake. The question is not whether Apple can break its encryption; it could. Rather, the singularly important question is whether it should. And, the eventual answer to this inquiry will be a watershed moment for personal privacy in the digital age.
Since the government views providing access to data – even more than the data itself -- as a duty no private citizen or company should have the power to resist, the feds characterize the current debate as a “minor” technicality. This is why it portrays Apple’s opposition to what it describes as a one-time-only solution to breaking the encryption on a single iPhone, as unpatriotic and shortsighted. Apple, and many Americans for that matter, view the government’s demands as something far broader and more important than a single, technical-assistance request in a single criminal investigation.
The true value of Apple’s encryption is that, as a manufacturer, it does not compromise its integrity for any reason. That's the shield. As soon as they do it once, the shield is pierced and is made worthless, and there is nothing to stop others, including governments, from demanding access based on lessening degrees of “extraordinary circumstances.” One need only look to the USA PATRIOT Act, which frequently is employed but only rarely for terrorism investigations, to see this maxim in action.
Subsequent demands to access encrypted data will come not just from the U.S. government, either. Russia, China, and any foreign country willing to act as a proxy will not hesitate to use this precedent to search the phones of American business executives they suspect of “spying,” or some other fabricated offense – for the sole purpose of using the data it gathers to its economic, military or internal security benefit. Furthermore, the technology used to defeat security will not remain a secret for long; it will be only a short time before private, non-state actors coopt the anti-security measures for hacking private data.
This is precisely why the Apple debate is not just about one dead terrorist’s phone; the precedent set here will impact anyone who shares information digitally.
The good news is that, initially, a lower court has looked with suspicion at not just how the government is rationalizing its authority, but to what it inevitably would lead. “In a world in which so many devices, not just smartphones, will be connected to the Internet of Things,” writes U.S. Magistrate Judge James Orenstein, “the government’s theory that a licensing agreement allows it to compel the manufacturers of such products to help it surveil the products’ users will result in a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.”
Unfortunately, Judge Orenstein’s correct analysis is being shouted down by government lawyers, political candidates, and most mainstream media outlets, more concerned with playing on fear of terrorism than with protecting individuals against Big Brother’s insatiable thirst for power and information.
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