Security, large and small

Apple and the FBI and the question of absolute rights.

On today’s Slate Political Gabfest podcast, the subject of Apple’s refusal to accede to a court order and break into the iPhone 5C used by one of the San Bernardino terror attack perpetrators was discussed. At the end of the heated conversation, Slate’s chief tech reporter Will Oremus neatly summarized the entire issue…

I think the law enforcement community does believe that the pendulum has swung too far with these devices and these types of software that have strong encryption that can’t be broken even with a search warrant and a criminal investigation. But, the security community is afraid that if you don’t allow that type of encryption the pendulum swings even farther in the other direction. If the government can compel tech companies to develop software to break into any possible encryption, then all of a sudden there’s, like, no privacy and security at all.

To say that a phone (or any other piece of tech) that could be theoretically accessed leads to “no privacy and security at all” is on its face a silly statement, but it does adequately capture the position of those who think Apple is in the right to refuse the FBI’s request. The government can legally gain access to our homes and bank records. Can tap our calls and read our mail, all within the bounds of a legal investigation and a judge’s approval. We clearly still have privacy and security, even so.

The more interesting question this case brings up is that the tech industry, with Apple leading the charge, has created a scenario our Constitutional system hasn’t yet dealt with: The reality of an absolute right. In this case, an absolute right to privacy.

Apple decided to make unbreachable security part of their business plan when they released iOS 8. With the advent of Touch ID and the secure enclave, they’ve essentially succeeded in creating, in combination with a sturdy passcode, a thoroughly unbreakable device. They have made, marketed, and sold an absolute right. The analog for which I can’t think of in the history of our country.

The fact that a corporation decided to do this all on its own without waiting for the government’s sensibility to catch up was, it seems, quite intentional. Apple rushed that horse out of the barn so fast it seems lawmakers and the justice system were barely aware these types of barns were a thing before it was done. By doing so, they removed any chance for real public debate on whether an individual’s right to a totally secure electronic device that is more and more central to their entire life outweigh’s the public’s right to gain access to that device under specific and controlled circumstances. The kind of realization that led to search warrants and other legal devices designed to crack open our private lives when the public good was served by doing so.

Apple has basically said that they, all on their own, known what’s best for everyone. Note that I’m not 100% sure they’re not right in this case, but my point is the debate wasn’t allowed to happen because a for-profit corporation (of which I am a shareholder and have been for 16 or so years) made a decision in a conference room without input from anyone other than those who worked there. The incredibly un-democratic nature of this seems not to have registered on those most vociferously defending Apple’s work to advance our civil liberties.

Personally, I’m very uncomfortable with the idea of a world in which those who would do tremendous harm to a great number of people might be able to do so without the ability for others to investigate their digital trail as thoroughly as they can their physical spaces. Those who defend Apple sniff at this idea. To many of them, based on their comments in social media and elsewhere, “national security” is a synonym for the destruction of civil liberties. Perhaps, if unchecked and unwatched, that could be the case. But there are valid security and law enforcement needs at stake and for me to point that out does not make me a naive Big Brother lover. And we have, as a society, found ways to balance the right of privacy against the right to defend and protect ourselves. To make the assertion that, in this case, we are unable to do so again is essentially a vote against representational democracy. That we are unable to protect ourselves from ourselves.

Some day, this issue will find its way to the Supreme Court. On that day (assuming there’s a full staff present), the court may decide we do not have an absolute right to privacy. If that happens, Apple and those who defend it will need to find a reasonable middle ground from which to operate. An answer to the question of how that’s done that doesn’t condescend to those who see some daylight between the right to security on a personal level as well as national.

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