“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”
Tim Cook is absolutely correct. Over the past year or more, the powers-that-be have waged what seems like a never-ending efforts to remove what shreds of the Fourth Amendment we still have. First, it was a “secure golden key” (a particularly dishonest way to refer to backdoors in all phones and computers.) Now, they only want access to a “single” iPhone. However, while the software modifications which the Department of Justice are requesting would grant access to only a single iPhone now, that is almost certainly not what would prove to be the case in the future.
Those who are criticizing Tim Cook for his decision, ranging from the predictably boorish and dimwitted Donald Trump to other mainstream politicians such as Ted Cruz to relatively erudite writers such as Gabriel Malor, who writes for the Federalist, are all extremely short-sighted in their criticisms.
Malor’s article, Cut The Crap, Apple, And Open Syed Farook’s iPhone, is a particularly good case in point: “Apple,” he says,
[M]ust assist the FBI in breaking into a seized phone. This particular iPhone 5C […] may lead the authorities to additional terrorists living in our midst—if law enforcement can obtain access to its contents[.] [A]t no point does Apple’s valid signature providing access for an iPhone update ever have to leave Apple’s control. […] Claims that this order endangers the privacy of iPhone users are simply untrue. This order, issued pursuant to a lawful search warrant, has nothing to do with the privacy of iPhone users other than one dead terrorist. It is customized to respect Apple’s need to control access to its software and signatures and to restrict the application of temporary software to Farook’s phone alone.
He goes on to argue that this does not constitute a backdoor and that fears of a slippery slope are exaggerated.
But are they?
There are several things we know about the government’s all-encompassing surveillance programs. For instance, it has been established beyond any real doubt that our government operates a number of surveillance programs which go beyond anything that the leadership of the East German Stasi could have ever imagined in their wildest dreams.
And these programs can’t figure out who these two terrorists were in contact with? That implies one of two things, neither of which are good for those who unquestioningly accept the claims of our “nationale Sicherheitsstaat.”
The first is that a tremendous amount of money is being spent to no real purpose. The second possibility, which is more likely in this case, is that the NSA’s phone metadata programs have logged the names and addresses of everyone with whom Syed Farook and Tashfeen Malik communicated via phone call or text message, and this case is being used to expand federal power, and for no other purpose.
Transparency For The Public, Privacy For The Government
But what about the slippery slope? Both the Obama and Bush (PDF file in link) administrations engaged in unprecedented efforts to keep the American people in the dark. Both of them classified far more documents than previous presidents classified. Both of them classified documents that would have never been classified before. And both administrations almost made a routine of trying to destroy whistleblowers through official and unofficial harassment and intimidation.
At the same time that they moved more and more aggressively to keep us, the people of this country, from knowing what they were doing, they also moved more and more aggressively to pry into every aspect of our lives.
Given what we have learned about the government since 2013, when Edward Snowden sacrificed a comfortable job, professional prestige, and the prospect of a good pension (to say nothing of any chance he had to ever see his homeland again) it has become blatantly obvious that we are on the slippery slope that Mr. Malor so flippantly dismisses.
A Devastating Precedent
If the government is able to compel Apple to unlock this phone, it will be able to compel them to unlock any encrypted phone for any person accused of any of the literally countless federal crimes that are on the books today. No one has any idea exactly how many federal crimes exist. The best estimate is that there were approximately 3,000 of them 30 years ago, and the federal code has exploded in size since then.
As John Baker, a retired professor of law, says in the Wall Street Journal, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime[.] […] That is not an exaggeration.”
What is only being used against terrorists today will become the routine tool of tomorrow, to be used against anyone who violates any of the countless statutes and laws that our country is burdened by today. And the day after that? What prevents China from demanding access to iPhones to root out underground churches or dissidents as a condition of Apple maintaining access to their markets?
What prevents Russia from doing the same? What prevents any of the incompetent and corrupt regimes that many developing countries labor under from demanding such access? What will prevent Saudi Arabia from demanding it to decrypt the phone of a poet, a gay teenager, or someone who had the temerity to accidentally look at someone of the opposite sex?
Nothing. There will be nothing to prevent it because the precedent will have been set, and it will be a precedent that will be applied with tremendous enthusiasm by corrupt and oppressive regimes the world over if it is allowed to take hold.
Even if you don’t care about the few rights you have left or about people in foreign countries, you should, at the very least care about the havoc that this will wreak on the American technology industry. If Apple and Google can’t provide their customers with privacy and security, there are companies in countries with sane, rational, and accountable legal systems which would be happy to do so. For the DOJ to do everything in its power to cripple an American industry when so few of them remain merely so it can add one tool to its investigative arsenal is reckless, short-sighted, and completely insane.
The title of this blog, “Pax et Libertas,” is not a random pairing of two unconnected words. Peace cannot, has not, and never will exist without freedom. Without recognition by each of the rights of all to dispose of their lives and property in ways of their own choosing, what exists is nothing more than carefully-hidden oppression and a lack of open conflict. This is not peace. At the very least, it is not peace in any meaningful sense of the word. Freedom cannot exist without peace because there can be no freedom, no security, no recognition of rights in an atmosphere of terror, whether this terror is the terror of the State directed at helpless civilians, the terror used by a mugger against his victim, or the terror that results from a system of patriarchy which functions to ensure that, even now, rape is still extremely common. At the bottom, all of these things have the same root: the idea of violence. This idea must be destroyed. Only then does some possibility exist that the bulkof the earth’s population will be able to live a life worth living for a human being.
It is my hope that this will serve as some small contribution to that larger effort.