Apple vs. FBI: Privacy & Inequality

In recent news, there’s been a fiery public relations battle between the FBI and Apple. While there has been vocal protest by the technology community, and particularly the information security community, against the FBI’s request, it has largely been rooted in (very valid) concerns over the degradation of software security, national security and privacy in a general sense. However, there’s a larger societal concern that cannot be ignored.

By way of brief background, the gist of the legal fight is that the FBI wants Apple to create a custom version of its operating system for iPhones, iOS, that would allow it to circumvent the safety measure of reducing the frequency with which the device’s passcode can be guessed when locked. The FBI wants this in order to access the contents of the San Bernardino shooter’s personal device, although this software, if created, would in fact allow them to circumvent the safety measure of any iPhone. I recommend viewing John Oliver’s segment on the debate for an accessible, but more comprehensive overview.

The issue itself, I fear, is representative of the early stages of a dichotomy between the “haves” and “have nots,” but for privacy. This is more important than I believe many realize as far as deepening inequality and injustice. This isn’t just about protecting photos of your children, or keeping secret the absurd questions you type into Google.

This is about the fact that devices are now an integral part of our digital identities; that, as dictated by the Constitution, all citizens have a right to privacy; and that, while not necessarily the norm, there are very real abuses of power within the law enforcement and legal system and bias against underprivileged groups.

Society and technology are now in an entrenched dependency; tech inequality will progressively manifest as socioeconomic inequality. The stratification of tech knowledge between higher and lower socioeconomic groups is leading to the latter’s vicissitudes in education and employment opportunities, but I also argue that the Apple vs. FBI case is the start of the age in which it manifests in legal rights as well.

Even if Apple wins, they will continue their invigorated efforts towards ensuring that any requests for customer data by law enforcement simply cannot be fulfilled. This will be a fantastic result — for those who can afford an iPhone. The reality is that owning an Android is a less expensive option, but does not come with these protections and is unlikely to in the near future.

Apple can enforce this level of security because it manufactures both the device and develops its operating system. Google could do the same with its own line of Nexus devices, but otherwise there would need to be a collaboration across all the various manufacturers of Android devices in order for it to happen. Even if such a collaboration does happen, it will take time and likely still command a price premium in the market for these efforts.

While there are a number of security measures individual Android users can take to reproduce most of Apple’s protections, they require a higher degree of tech ability than most consumers, not to mention lower socioeconomic groups, possess. So even though it is technologically feasible, the nature of socio-tech inequality as it relates to education still creates a substantial hurdle towards an accessible method of ensuring privacy.

Less affluent consumers are thus left without these protections, the protections that protect our private data on our mobile devices from law enforcement and enforce the Fourth Amendment. These less affluent consumers, particularly those belonging to racial minorities, are also much more likely to be accused of criminal activity.

There are two key disadvantages in this arena that underprivileged consumers subject to discrimination face, which I’ll illustrate by way of analogy (which may seem superficial at first blush). In Jay-Z’s song “99 Problems,” he raps that, when asked by a police officer to search his car, he retorts, “Well, my glove compartment is locked, so is the trunk in the back / And I know my rights, so you gon’ need a warrant for that.”

First, underprivileged people may not have the ability to “lock” the digital versions of their glove compartments and trunks, because they cannot afford the luxury of privacy via strong security. Second, Jay-Z is aware of his rights and the need for the officer to have a warrant, and such knowledge is invaluable in maintaining his privacy — more importantly, his innocence — in the face of accusatory and biased law enforcement. However, the knowledge and understanding of digital privacy rights, and how to protect them, is barely existent among even affluent, highly-educated groups, so consumers with greater resource constraints are even less likely to have satisfactory awareness.

With many highly public instances of abuse of power by law enforcement, it would be naive to assume, should the FBI win this case, that the power that having full access to the contents of a mobile device brings would not have the same potential to be similarly abused. When you consider that divulging passwords is protected by the Fifth Amendment as “knowledge,” having an easy technology option — simply automatically updating the device with law enforcement’s proprietary version of the operating system, thereby removing passcode protections — is understandably seductive.

Parallel construction is a very real concern among groups subject to routine discrimination, and it isn’t difficult to imagine law enforcement illegally unlocking phones, searching for the evidence they want and retroactively claiming that this data was the cause for the suspicion. This includes liberal interpretations of incriminating evidence — jokes could potentially be purposefully misconstrued as evidence, with the defendants facing racial or socioeconomic bias that would make it difficult for them to contest.

The combination of pervasive smartphone cameras and the viral nature of social media has helped foment the recent outrage against transgressions by law enforcement. Knowing that data recorded on smartphones now has the potential to highlight unprofessional and illegal conduct, it also not difficult to imagine that law enforcement would desire the ability to easily circumvent security protections to prevent such ignominy.

Even with these examples, it’s essential that we not forget that privacy is granted to us as a fundamental right, and that even the potential for its violation is worthy of outrage, regardless of cause. Rights are meant to be for all citizens, but in a FBI-wins world, only those who can afford the efforts of Apple’s R&D department will be able to buy their rights back in a depressingly simoniacal manner.

Though it may appear hyperbolic, this case may be one that has a resounding impact in shaping our society going forward. Even though many will still be unable to afford the luxury of privacy, at least in the short-term, even if Apple wins, their prospects are far more dire if Apple loses. Should the FBI win, we are unequivocally cementing this inequality and further disenfranchising those who cannot afford the luxury of privacy.

I like to think that the United States, at its best, can serve as a role model for innovation to the rest of the world. Is the sort of society in which only those who are well-off can realize their right to privacy the one we want to build?

About me: I’m one of the founders of IperLane, an enterprise mobile monitoring and security startup. I also write posts analyzing intriguing tech sectors attracting VC funding in a series called WTFunding.
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