(Spoiler: It’s not even really about encryption.)
Who knew that something as friendly as the iPhone would be the catalyst for a debate on where we draw the line between privacy and national security?
The Federal Bureau of Investigation is seeking help from Apple to disable a security feature — after 10 unsuccessful password attempts, all data is automatically “wiped” from the device — on an iPhone phone used by San Bernardino terrorist Syed Riswaan Farook.
Although a healthy conversation is taking place, there’s a lot of misinformation being carried into this important debate. We should dispense with the less logical arguments and define our terms. Here are a few common arguments being made in support of Apple’s stand to deny the government’s request that are worth taking a closer look at.
1. “If Apple cooperates, eventually the government would have a backdoor into all iPhones.”
The problem with this argument is that it ignores the issue at the heart of the matter: the iPhone feature designed to self-wipe the device after 10 unsuccessful password entries. The FBI isn’t asking for Apple to give them a key, they’re asking for them to disable the data equivalent of a neutron bomb within the phone.
Let’s use an analogy of home security for a thought experiment. The iPhone’s self-wiping feature isn’t a lock on the front door, it’s the equivalent of an explosive booby-trap rigged to demolish the home to prohibit unauthorized entry.
The proper question in this debate should not be whether backdoor encryption keys should be created — they should not be — but whether it should be legal to sell street versions of devices that conform to the security specifications of the world’s most dangerous organizations.
Put another way, yes, any move by Apple to remove this feature from one of their phones would downgrade their user’s data security, but should we be permitting companies to market phones with this nuclear option?
(Is it possible that Apple only sidesteps charges of aiding in a crime because the wiping of the phone makes it impossible to document what evidence has been destroyed by software specifically designed for that purpose? Maybe.)
2. “The government already has the information they need. They don’t need what’s on the phone.”
This is perhaps the most ridiculous argument roaming out there. In the investigation of terrorist attacks such as the San Bernadino massacre, there should be no stone left unturned.
Consider that in the wake of 9/11, scores of human assets were busily gathering intelligence data on high value terrorists. Intelligence experts acknowledge that hard drives, phones and physical files often contain critical information not found through other means of investigation.
Smartphones are computers and can store files and information not discoverable by accessing phone records.
Furthermore, is it likely that a terrorist who used a phone with a self-wiping feature would have chosen that place to hide the most critical information? Yes, if that terrorist was smart.
Note: When confronted with this counter-argument, privacy advocates will immediately pivot back to argument #4.
3. “Apple has already turned everything over, including what’s backed up on the cloud. There’s no reason they need to get into the phone.”
This is an interesting subspecies of argument number 2 that manages to almost surpass its ridiculousness. It stems from a persistent desire by many to treat digital spaces as having different rules than physical ones when it comes to lawful search.
Start thinking of your smartphone in the same way you do a home or a car. Now consider that an FBI agent has a warrant to search a home rented by a suspected terrorist. Upon arriving at the home, the agent finds the landlord in the driveway surrounded by boxes and other items. The landlord says, “Everything’s here.” Does the agent take his word for it? We all know the answer to that question.
In the case of Apple, no one would suggest that they are withholding evidence found on the terrorists. Still, the public deserves to know that law enforcement doesn’t outsource the critical matter of evidence gathering.
4. “We shouldn’t give up privacy to get security.”
This bastardized version of Benjamin Franklin’s admonition — “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” — is frequently cited by privacy advocates.
But privacy advocates have lost an important distinction by making the loose translation. Even though they may be mutually necessary in a free society, liberty and privacy are very different ideas. What’s more, Franklin wasn’t originally writing about liberty in that sense. Franklin first made the statement in 1755 in a letter to the British-appointed governor of colonial Pennsylvania concerning a proposed tax. If you want to know how the quote is being misused, please read the original text.
It should be said that Franklin also never advocated that anyone charged with a crime and receiving due process should be exempt from search. Half of the Bill of Rights deals with due process because the framers saw the need to constrain the government’s power, not to eliminate it. Nowhere in the five amendments dealing with due process, crime and punishment is a right to destroy evidence contained.
5. “If Apple gives the government the ability to search a terrorist’s phone, they’ll have access to all phones.”
There’s some legitimate reason to worry about a government backdoor, but the government isn’t asking for Apple to create a backdoor. This standoff isn’t a matter of Apple not wanting to hand its encryption keys to the FBI (though that would be inarguably their legal obligation if we were talking about any other type of property), it’s a matter of an Apple-designed feature in the iPhone operating system that wipes the drive after 10 failed password attempts.
We should have an expectation of privacy and the Fourth Amendment matters. We have the right to put things in places where no one — including the government — can see them until government comes to us with a legally acquired warrant. We do not, however, have the right to rig our property to for self-destruction in a way that thwarts legal searches.