Today, Apple published a letter to its customers declaring its intent to resist the government’s demands that it decrypt one of the iPhones used in the San Bernardino terrorist case. Apple claims that the technology to do so does not currently exist and that developing such technology would do more harm than good by making iPhones vulnerable to criminals and other hackers. The result would be that millions of innocent civilians would have vulnerable cellphones while terrorists and criminals would simply switch to some other form of encrypted platform.
These are reasonable, but flawed, arguments. First, there is no right to completely protected communication in the United States. All the Fourth Amendment does is protect U.S. persons from “unreasonable” searches and seizures and require that the government procure a warrant from an objective judge to carry out a “reasonable” search based on probable cause. This constitutional right has been appropriately balanced by national security needs in the form of the FISA Statute, which provides a process by which secret, domestic surveillance can be carried out in a controlled manner. As a result, the government can currently go to the FISA court to request a warrant to wiretap your home phone, read your emails, and do all sorts of other secret domestic surveillance. There’s no reason why cellphones should be a special category of exempted communication. It’s unprecedented and Apple offers no compelling argument for such a status. The letter says that:
Smartphones, led by iPhone, have become an essential part of our lives. People use them to store an incredible amount of personal information, from our private conversations to our photos, our music, our notes, our calendars and contacts, our financial information and health data, even where we have been and where we are going.
Yet the same could be said of computers in general and the internet even more specifically. No one would suggest that these technologies should be completely impervious to government monitoring.
Second, the argument that criminals and terrorists will simply switch to other methods of encryption, thereby negating the benefit of surveillance, is overblown. Many terrorists and criminals are caught simply because they are stupid and make mistakes. It is reasonable to believe that many would continue to use iPhones and other types of de-cryptable smartphones simply out of laziness or ignorance. We should take advantage of this weakness. Moreover, I believe the government has a better chance of finding a way into the encryption software of small, homegrown developers than that of the most valuable company in the world. In other words, Apple has the skills and resources to ensure the government stays out. I have less confidence in the abilities of lesser developers.
Last, as I alluded to in my first point, domestic electronic surveillance is a fact of life. Every government does it because it is a necessity in a dangerous world. While the thought of the government reading our communications may make many of us uncomfortable, the fact is that no other country controls domestic surveillance powers as much as the United States does. The FISA system, which has been in place since 1978, appropriately balances privacy and security concerns and ensures that Americans’ rights are protected. Most importantly, it’s a system put in place by democratically elected representatives and not the president of a private corporation whose only responsibilities are to the firm’s shareholders. Apple’s heart is in the right place, but its arguments are flawed and dangerous.