From what I can gather about Tim Cook’s background, he and I have some things in common. He grew up in the conservative South; I grew up in the liberal North, but in a conservative subculture of Irish/Italian Catholic community. He is 55, I am 57. He is gay; if I must use a term along those descriptive lines, I would call myself bisexual. In previous blogs, I talked about this aspect of my life, and even shared the insight that growing up in the kind of environment I did in the sixties and seventies probably has contributed to a deep and abiding interest in privacy. My guess, my intuition, is his background informs his view on privacy.
I am willing to venture this guess because his blogged response to the All Writ’s Act struck me as deeply personal. Commentators and even the court that issued the writ are making much of Apple’s reputation and public relations posture. I don’t doubt those aspects might also be true, or that Mr. Cook has blended his personal identity with that of the Apple Corporation. But I would like so suggest another angel to this discussion if only to help us, as a country, sort this important legal matter out.
Were I adviser to Mr. Cook, and asked to zealously represent Apple’s defense to the Writ, the last thing I would have encouraged him to do would be to post that blog. The Writ is a legal matter. There are precedents from which to distinguish this case and facts which can be brought to bear under the undue burden exception. Albeit true that hard cases make bad law, to the degree that it begs a public policy response I would have suggested the tact of a New York court in a similar case that has called upon Congress to amend the Communications Assistance Law Enforcement Act. Not even in a legal document would I make the case that privacy is absolute.
To be sure, there is no absolute principle in the law, notwithstanding what some political extremists might want to establish, including the most sacrosanct of all constitutional amendments regarding free speech. At least that one has language to the effect: “Congress shall pass no law…” As everyone knows, the word “privacy” can be found no where in the Constitution proper. Apart from some torts that still struggle for a solid hold in civil law, privacy as a constitutional matters makes its appearance in the middle of the last century as a “penumbra” of constitutional amendments cobbled together in the dicta – not the decision – of 1965 case regarding family planning. Without going down a big rabbit hole about Griswold and its progeny, I will simply state that were I advising Mr. Cook, with this loose confederation of constitutional law for support, I should not have thought it advisable to stir up this hornet’s nest.
Thus, what I suspect is eminently a personal matter deeply felt for Mr. Cook, has now become entangled with public relations and reputation of the most capitalized company in the world. This would be the same company that has managed to exempt itself from millions and millions of dollars in U.S. corporate taxes. And for its own business purposes, it has contributed mightily to the gross national product of any number of Asian countries, the People’s Republic of China most, rather than pay higher wages and keep the production of its myriad products within the United States. (Disclosure: I own and/or have owned Apple products almost exclusively, and am proud to say that my older son once worked there.) I bring up these extraneous matters because as Mr. Cook’s imaginary advisor I would be concerned that with his blog he has opened the door to many serious and legitimate concerns that the public might have about Apple and how it conducts its business.
And we have not even gotten to the issue of terrorism yet. If no other appeal to restraint would have yet moved him as I made my arguments not to post, I would have lowered my voice and asked, “Have you no compassion, Mr. Cook?” Not just “people” on “U.S. soil,” this terrorist gunned down his own friends and coworkers for a cause that did not even know that he and his wife existed. Let’s play with the timetable for a moment. Suppose there was evidence in advance of the attack and law enforcement approached Apple with this one, last request: the owner of the phone has consented, and all we need you to do is disable the passcode encryption key destruct in order to find out “who,” “when,” “where,” or “why” to stop it. How many people’s lives would have to hang in the balance before the very obvious decision would be for Apple to produce the code to unlock the evidence that might prevent the attack? The answer should be not even one. Of course Apple should do it.
And Apple should comply with this Writ. I will not brandish my privacy bona fides.Tying this Writ to the entire “back door” issue is hyperbole. All, as I understand it, Apple has to do is rewrite the IOS code to disable the encryption key destruct code for 10 failed passcode attempts for this one iPhone. The Court is not requiring that Apple turn over the code to the government. It is not requiring Apple to keep the code on hand for a future request. Apple can, and should, destroy the code once this one phone is unlocked. What is the sense of that? That is what the law means when it uses the term “tailored,” which is precisely the nature of this particular writ. And from what I understand from precedent, to do just that does not meet the standard for an undue burden, so that exception does not apply in this context.
I may be entirely wrong about what motivates Mr. Cook, and if so then I will accept the criticism that I have “projected” my own experience onto what inspired his otherwise moving blog post. But I have not displaced it. I separate my own motivations to embrace privacy from this moment. Mr. Cook, as your fantasy advisor, I suggest you rethink your decision to appeal emotionally to privacy advocates or your customers or user base and honor the court’s Writ. Without safety, we would have no need for privacy, our lives would be too reduced to contemplate it.
And without justice there is no right to privacy.
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