By Paul Mulholland
If you’ve ever heard someone say, “We must find a balance between security and privacy,” they have yet to make their real point, but they are already lying to you. This phrase, or one like it, is almost invariably followed with a list of restrictions on property and privacy rights and justifications for them.
What does the first statement really mean? It seems as if the speaker is implying that security and privacy are contradictory. In other words, the more private our lives are, the less safe we are. Why not have zero privacy then? Will that not maximize our security? I cannot possibly emphasize this enough: privacy keeps you safe. It protects you from criminals, foreign agents and unaccountable intelligence services. The right to privacy is an auxiliary right — and an important one. Privacy enables you to exercise your other rights. Your protection from arbitrary searches is critical to your security and autonomy as a human being. You cannot live freely without it.
If there is a “balance” to be struck, then the nightmare of George Orwell’s “1984” would be the pinnacle of public safety. But of course, it wasn’t. The government of Oceania routinely abused its people. If you are not safe from the government, then you are not safe at all.
All of this fits into the context of the recent Apple vs. the Federal Bureau of Investigation (FBI) showdown. An iPhone belonging to Syed Farook, one of the alleged murderers in the San Bernardino shooting in which 14 Americans died, is now in the possession of the FBI. The FBI can just guess every single four-digit passcode combination to get into the phone until they get it right, a technique known as “brute-forcing.” However, most iPhone users know that if you guess wrong too many times, you are prevented from guessing at all for a rapidly increasing amount of time, and 10 consecutive wrong guesses will lead to a complete wipe of all information on the phone.
According to The Economist, the FBI wants Apple to write a software update that will disable these two features on Farook’s phone, which is technically owned by his government employer, the San Bernardino Health Department (SBHD). The FBI cannot update the software itself because iPhones will only accept software updates that are signed with a special encryption key that is unique to Apple. So, the FBI obtained a court order to force Apple to write the necessary software and implant it into the phone so that they can access its information.
According to The New Yorker, the FBI is using the All Writs Act of 1789. The act allows Federal Courts to give orders that are in accordance with existing law, but when actual law pertaining to the issue is lacking, they can compel entities such as Apple to cooperate. Apple claims in its legal brief to the Ninth Circuit Court that this places an unreasonable burden on the company. Apple also claims that the FBI is attacking its First Amendment rights by forcing employees to speak, because software code is speech (as determined in the court case Bernstein v. U.S.).
I can see how some might say that Apple should write the software for the FBI. After all, Farook, the murderer in question, killed 14 people. The SBHD, as the technical owners of the phone, asked the FBI to search it. On top of all that, Apple has been ordered by a court to help the FBI. But it is the convenience of this case that should make one suspicious. It seems as if James Comey, the director of the FBI, is taking a case that the public will sympathize with. He could have sent the phone to the hackers at the National Security Agency to see if they could decrypt the phone themselves, but he has yet to do that. It seems likely then that he is just putting a toe into the judicial waters to see what he can actually get away with. As Tim Cook, the CEO of Apple, said in an interview with ABC on Wednesday, Feb. 24, “This case is about the future.” The FBI wants a strong legal precedent that it can point to in the future to compel Apple or other tech companies, like Google, to effectively become an arm of the state. It is doing so by appealing to fear, even though the FBI is too afraid to hold proper public hearings before Congress with representatives from Apple being present.
The FBI claims that it only wants this software for this one particular phone. The problem is that the update they are asking for would work on any phone.
Indeed, many state and local police departments are already requesting the software for lesser criminal cases. If the FBI wins this fight, expect this software to become widespread. But why worry about that? The first problem is that you cannot write software only for the “good guys.” If the software were to get out, then any criminal could use it to take information from any private citizen with an iPhone. So we see that the interests of law enforcement and those of public safety are actually juxtaposed here.
Apple can’t delete the software after they have opened Farook’s phone. They will have to keep it on hand for the next law enforcement request, or at the request of a judge or defense lawyer who would want to examine cell phones to see if it is admissible evidence. Nor can the government be trusted to hold onto it, because the government is comically inept at keeping its data safe. Encryption keeps American businesses and individuals safe from cyber crime, our government and foreign governments. We should not throw that protection away to crack one phone.
There is also good reason to believe that there is no information on Farook’s phone worth having. Typically, when the government seeks intelligence warrants, they do so in private. But this time, they have made their intentions public, with the FBI tweeting about the conflict and James Comey blogging about it on Lawfare, a blog that discusses current legal debates. Anyone connected to Farook has had weeks now to hide and to delete their own information. On top of this, Farook physically destroyed two phones and a laptop of his, leaving only this one iPhone intact. Comey is trying to see what he can get away with and he hopes to end up with a legal precedent. This iPhone is unlikely to yield actionable intelligence and the FBI knows it.
Why should we be so concerned about such a precedent? For one thing, it will turn Apple into an arm of U.S. intelligence, effectively destroying its ability to function in other countries because it can no longer guarantee the safety of its products, since they have an obligation to sell their customers protected products.
According to The Economist, the Department of Justice claims that Apple is only resisting the order so that they can sell more phones to civil libertarians. It seems strange to imagine people buying unnecessary Apple devices just to make a point. But this comment also shows the government’s naked contempt for personal privacy and private enterprise. They are not revealing anything useful when they say Apple exists to make money, but the Department of Justice did reveal just how little it thinks of its citizens and corporations.
We should also be afraid of this ability of the government to compel third parties to assist it in enforcing the laws using the All Writs Act. Bear in mind that Apple does not own the phone. They are being told to assist the government in breaking into someone else’s phone. But where does that end? Apple’s legal brief provides some examples: Could the government force a pharmaceutical company to produce lethal drugs to effect a legal death-warrant? Could they force a journalist to write false news stories to lure out a fugitive? We’d better hope not. The FBI is suggesting that all Americans should be slaves to the police.
In addition to being hopelessly incompetent, the FBI simply cannot be trusted. Ever since its inception, the FBI has effectively functioned as a private police force for the sitting president. There is nothing inherently noble about FBI agents. If you allow for abusable power, those in power will abuse it. The FBI is simply annoyed that there are autonomous civilian groups that are willing to stand up to them. The FBI does not give a damn about the law — they only care about their position of power in society.
