FBI, Apple and the Scope of Privacy

iPhone 6

The legal debate between Apple and the FBI concerning encrypted phones mostly concerns the extent to which the government can compel a private third party to assist in a law enforcement investigation.  But if you read Tweets, comments and commentary surrounding the FBI/Apple debate you sometimes get the sense that the public feels, at some level, that the act of unlocking the phone itself is an invasion of privacy.  I want to push back there.  (On the more central issue, I think E.D.N.Y. Magistrate Judge James Orenstein's order denying the FBI’s request to force Apple to unlock a drug dealer's iPhone is a great read and provides a strong argument as to why the government’s request goes too far.)

There’s a tension here created by advancing technology.  On the one hand, never before has so much information about our personal lives been concentrated – or, at least, had access points concentrated – in a single personal item carried around on a daily basis.  As Google, Amazon, Microsoft, et al. wrote in their amicus brief in support of Apple’s fight in San Bernardino:  “Americans live their lives on their phones now. They store their emails, their conversations, their appointments, their photos, sometimes even their medical information, all in a device they carry in their pockets. Cell phones are the way we organize and remember the things that are important to us; they are, in a very real way, an extension of our memories. And as a result, to access someone’s cell phone is to access their innermost thoughts and their most private affairs.”

On the other hand, as Apple and others take steps to implement encryption protocols that even they can’t circumvent, we’re approaching an unprecedented era where people have the capability to create a fully secure black box to hold their personal information.    

I think it’s pretty easy to feel that it’s an unremitting good for every person to have a private sphere shielded from view.  An article by Kevin Poulsen in Wired expresses this idea.  Criticizing a Washington Post editorial, Poulsen writes that “[i]mplicit in the Post’s argument is the notion that the existence of the search warrant as a legal instrument obliges Americans to make their data accessible . . . . This argument also misunderstands the role of the search warrant. . . . It’s an instrument of permission, not compulsion. If the cops get a warrant to search your house, you’re obliged to do nothing except stay out of their way. . . . [Y]ou’re not placing yourself ‘above the law’ if you have a steel-reinforced door that doesn’t yield to a battering ram.”

But at the same time – and recognizing that I’m shading more towards thought experiment here than what’s presently capable or widespread – our system of justice, both criminal and civil, depends on people having the ability to borrow the court’s authority and break into each others’ private information.  That’s the point I think folks sometimes ignore – how much do we really have, or want to have, an absolute right to privacy that supersedes lawful orders to produce documents or make them available for search?  Because, in general outside of a few special areas – legal privilege, doctor-patient privilege, etc. – nothing about our lives is absolutely protected from being discovered in response to a lawful order.

Returning to Poulsen’s comments above – sure, you’re absolutely entitled to have a steel-reinforced door.   But if the police find it impossible to get through that door with the battering ram they brought, they will return to court and secure an order requiring you to open the door and allow the search, or upgrade their equipment from battering ram to something sufficiently powerful to overcome that door.   One way or another, they’re going to be conducting their search, even in the face of obstruction from the defendant.

Now, in contrast, we have the possibility that companies might create and distribute steel doors that absolutely cannot be opened by any equipment, and that might remain locked forever if the custodian refuses to cooperate or becomes unavailable.  And, presumably, in the future encryption technology will spread from phones to other peripherals and computer accessories (or computerized accessories -- Internet of Things). 

In a way, the government’s choice of test case to highlight works against them – they get to invoke the fear of terrorism, but most reasonable people recognize that we shouldn’t be trading our privacy or freedom to protect against the tiny, marginal risk of terrorist acts (at least we do now, 15 years after 9/11).  But what about vastly more common and mundane crimes – surely we’d be uncomfortable if every house had a basement that the police were incapable of entering, right, where a body or murder weapon could be stashed?  Or that a private litigant could say they lost the keys to – “Sorry, I know you think the evidence I embezzled from you is in that room, but what are we gonna do?”

I’m not arguing against Apple’s position here – I’m just trying to remind the reader that there’s a value to being able to access each other’s information to solve crimes and resolve disputes, and absolute privacy is not the unfettered good its sometimes treated as rhetorically.