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I almost always agree with Tracy Mitrano, but I don’t when it comes to the FBI’s demand that Apple help them access information on a phone used by one of the mass killers in San Bernardino.

If I understand her argument correctly, Apple should comply with the FBI’s request because they obtained a court order, it’s specific to one phone, and the state has a compelling interest that is greater than Apple’s business-related claims or the CEO’s personal beliefs about privacy.

I’m not going to defend Apple in particular. It’s a big company; it can take care of itself. I’m a bit queasy with the idea that the state could order a company to write code to undermine features of their operating system that it considers important to their brand and to their customers, but I’m not generally a champion of the rights of giant corporations against what could be considered the public interest.

The question for me is: what is the public interest, here?

The state has tried to use the All Writs act over the past decade to force companies to either break encryption on phones or otherwise provide access to information that isn’t easily obtainable. The All Writs Act requires private entities to assist the state to execute a court order provided the work involved isn’t unduly burdensome. The mixed messages so far from the courts show that defining “burdensome” depends on the judge and the situation. The FBI doesn’t think it would be burdensome for Apple to write customized code to disable the auto-delete feature built into the operating system after ten false password tries and also disable the features that prevent anyone mechanically entering various combinations to “brute force” access. They also dismiss Apple’s claims that this is a slippery slope, that the government is forcing Apple to create a backdoor for law enforcement, because the order is specific to a single phone.   

But I think Apple has reason to be concerned and I support them in opposing this court order. Would companies be required in future to write custom code like this whenever a court issues a warrant? Will Apple’s customers – people who want encryption as a feature - have to live in a world where the government can disable it on demand? And while privacy is not guaranteed explicitly in the Constitution, freedom of speech is. Code is a arguably a form of speech. Can the government compel coders to essentially censor their own speech by forcing them to write code that undermines their previously-written code?  

To me, it looks as if the state is retrofitting its previous (and hardly unprecedented) attempts to force companies to give them access to encrypted communications through backdoors. Since they haven’t succeeded, they’ll launch a series of skirmishes to force tech companies to give them access at considerable cost whenever they present a court order. They failed to win the war, so they’ll in engage battles. If you win enough battles (and, perhaps along the way, hearts and minds) you might just get what you want in the end.

The FBI is counting on the public’s sense of justice. Of course we want to help the authorities stop terrorists, convict drug dealers, and solve murders. But the problem is that in an age of unprecedented mass surveillance, the state has demonstrated that it always wants more. The government secretly amassed immense amounts of information about all of us, and people have rightly become concerned about it. The government lost our trust, and now many of us are hoping that a tech company can do something to protect us from the state – our state, other states, rogue states, hackers, and thieves – by offering us strong encryption on at least one of our gadgets.

In my view, it’s not at all clear that the information on that phone is sufficiently valuable  to justify the state’s demands for custom code. I believe they will make such demands again and again not necessarily to solve specific crimes but to weaken support for strong encryption. Winning a high-profile case like this - whether in an actual court or in the court of public opinion - will set a powerful precedent. The state should protect public safety by supporting strong encryption rather than seeking repeatedly to undermine it.

Without privacy, I wouldn't count on justice.


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