Ever the transactionalist, President Trump believes Apple should compromise hundreds of millions of people's privacy because he has allowed the company to avoid some tariffs in his senseless trade war. "We are helping Apple all of the time on TRADE and so many other issues, and yet they refuse to unlock phones used by killers, drug dealers, and other violent criminal elements," he tweeted Tuesday night. "They will have to step up to the plate and help our great Country, NOW!"
This attempted quid pro quo — whether it's better labeled blackmail or bribery, I'm not sure — adds a new twist to Apple's longstanding privacy fight with federal law enforcement. Optimistically, it may be read as desperation, a sign that more traditional means of legal coercion will continue to fail to force Apple to build the encryption "backdoor" the government wants. More worrisome is the interpretation that Washington will do whatever it takes to force Apple (and other, less privacy-committed companies) to do its bidding, forging ahead to a new frontier in digital surveillance.
The present iteration of the Justice Department's quarrel with Apple concerns the FBI's investigation of the December shooting at a Naval air base in Pensacola, Florida. The FBI has so far failed to break into two iPhones, both of which had significant hardware damage, to see if the shooter, who is dead, acted alone or with as-yet undiscovered accomplices. Attorney General William Barr on Monday claimed Apple has not provided "any substantive assistance," though in fact the company has already provided the FBI with "all of the data in [its] possession."
What isn't in Apple's possession are the phones' passcodes. Each year, Apple complies with thousands of law enforcement requests for customer information stored on its servers. But users' passcodes aren't there, which means Apple itself can't access them or the encrypted data (including messages and photos) stored on the phone. This encryption isn't perfect, and law enforcement and other tech companies have been able to bypass it on older iPhones. But newer machines with improved security (as well as damaged ones, like the two from Pensacola) present a sometimes-insurmountable obstacle. Thus the request for a built-in backdoor, which Barr characterized as necessary to "better protect the lives of Americans and prevent future attacks."
The practical case against Apple's compliance is straightforward: Once created, the backdoor will be opened when it shouldn't. Even if our government's use were 100 percent legal and ethical — and it absolutely wouldn't be — the backdoor will not be used only by our government. Beijing would love an iPhone backdoor, as would any state with an invasive surveillance apparatus. Among the lessons of the last decade is how much can be derived from spying on "just" metadata; imagine what use could be made of the actual content of our communications.
Also pro-backdoors: criminals. There is simply no way to give law enforcement the access it wants without exposing users to risk from more nefarious actors. "We cannot build a backdoor that only works for a particular type of government, or only in the presence of a particular court order," explained security expert Bruce Schneier at The Washington Post when Apple was having essentially the same argument with the Obama administration. "Either everyone gets security or no one does. Either everyone gets access or no one does."
The legal and principled case against encryption backdoors is a bit more complex. It isn't, as Barr tried to suggest in an October speech on the subject, that privacy advocates believe law enforcement should never be allowed to access the encrypted data. Barr is quite right in his contention that the Fourth Amendment's privacy protection "has never been absolute," that it "establishes that, under certain circumstances, the public has a legitimate need to gain access to an individual's zone of privacy in pursuit of public safety, and it defines the terms under which the government may obtain that access." Despite Barr's implication, Apple doesn't disagree, nor do I, nor do other critics of the surveillance state.
Where we do disagree is that the government's acquisition of warranted access to someone's private information justifies accessing that information by any means, including compulsion of Apple's work and modification of its products (including, potentially, in violation of its engineers' consciences). Fair analogies are difficult here, but it's a bit like the FBI requiring lock manufacturers to make all doors openable with a master key. No one would consider that a reasonable interpretation of the Fourth Amendment. A warrant can give law enforcement legitimate permission to open a door but not permission to require the compromise of every lock's integrity.
Trump's tweeted contribution to this debate manages to introduce a third avenue for abuse, envisioning as it does a scenario where Americans' constitutional rights may be abrogated at will if Washington can but find the right company to strong-arm with promises of favor or threats of retribution. This is particularly troubling given the growth and consolidation of corporate power. In the tech arena, our lives are increasingly shaped the Big Five (Apple, Google, Amazon, Microsoft, and Facebook; I have dealings with all of them, and only Apple gives a whit about privacy). If the "internet of things" continues to expand, that will open an enormous gateway to further surveillance which will likewise be predominantly controlled by relatively few corporations. Even one of these businesses succumbing to the type of transaction Trump's tweet conjures would have enormous implications for millions of people.
It may be that privacy is a thing of the past and we civil libertarians are fighting a battle we do not realize we have already lost. I am nevertheless convinced it is a worthwhile battle, because privacy is a necessary right, a right protective of other rights, like freedom of speech, press, assembly, and religion, and because surveillance is self-propagating, uniquely difficult to hack back once it takes root. Our privacy must not be sold for the president's "help" in surviving a trade crisis of his own making — or indeed any such blackmail or bribe Washington can muster.
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