It hadn’t been in the plans to return to Mag. Pym’s Apple warrant again, having addressed it only yesterday, but confusion about the confluence of law and technology persists. First, there was Apple CEO Tim Cook’s letter to customers, in which he makes the case for why this order is a showdown that will make or break privacy.
We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.
The argument is not merely sound, but a bellwether. Once the door is forced open, there will be no closing it for anyone who wants to get in. Unfortunately, this leads Farhad Manjoo in the New York Times to demonstrate how utterly clueless tech-types can be, and try to make as many people stupider as humanly possible.
But if the confrontation has crystallized in this latest battle, it may already be heading toward a predictable conclusion: In the long run, the tech companies are destined to emerge victorious.
There will probably be months of legal tussling, and it is not at all clear which side will prevail in court, nor in the battle for public opinion and legislative favor.
Yet underlying all of this is a simple dynamic: Apple, Google, Facebook and other companies hold most of the cards in this confrontation. They have our data, and their businesses depend on the global public’s collective belief that they will do everything they can to protect that data.
No. This is fundamentally clueless. Manjoo may get away with writing such drivel at the narcissists’ safe space, Slate, but not in a newspaper for grown-ups. To describe what we will be facing as “legal tussling” reflects the depth of ignorance. This is a life or death battle, and while tech heads can easily wrap around Apple’s argument, the law enforcement argument means nothing to them.
It’s because this fight is so important that such cluelessness cannot be allowed to go unaddressed. Legal tussling? How about “legal tussling” that ends with marshals with guns pointed at Tim Cook’s head telling him to break open the iPhone or else? Nobody with a gun pointed at their head calls it “legal tussling.” Nobody who appreciates the depth of concern on the other side is so absurdly cavalier as to announce in advance that tech will “emerge victorious.”
And nobody, but a blithering idiot, thinks tech companies “hold most of the cards in this confrontation.”
iPhones are the first warrant-proof consumer products in American history. They compel law enforcement to deploy extraordinarily creative prosecutorial strategies – and obtain state-of-the-art tools – to carry out even the most basic steps of a criminal investigation. I applaud our federal colleagues for their commitment to justice for the 14 killed in San Bernardino and their families.
The magistrate judge’s order rests firmly on centuries of jurisprudence holding that no item – not a home, not a file cabinet and not a smartphone – lies beyond the reach of a judicial search warrant. It affirms the principle that decisions about who can access key evidence in criminal investigations should be made by courts and legislatures, not by Apple and Google. And it provides the highest-profile example to date of how Silicon Valley’s decisions inhibit real investigations of real crimes, with real victims and real consequences for public safety.
A fundamental precept of American jurisprudence is that “the law is entitled to every man’s evidence.” What Manjoo fails to grasp is that law enforcement holds the trump card: neither the courts, nor the government, care more about Apple’s problems, technologies problems, the fate of world privacy, than they do about their own hegemony. In a battle between the law and all the arguments against compelling tech companies to do as they’re ordered, the courts have a weapon that cannot be dismissed. Judges get to decide which side wins. Judges will not be dismissed because some tech-lover like Manjoo loves tech more than law.
And lest anyone explain why the arguments favoring technology in the war must prevail, and that Apple is mightier than the United States, than any government, so that you pray Apple prevails, pause a moment to consider exactly what you are praying for.
At this moment in time, we’re all cheering for Tim Cook, who is expressing the concerns and dread that so many of us have when it comes to the government’s Luddite view of how the future of privacy stacks up to its demand for control. Yay, Apple.
But if Apple, Google, Facebook prevail, and prove themselves mightier than our government, any government, then their CEOs become our new Overlords, omnipotent kings who cannot be stopped or controlled. At the moment, they seem like benevolent kings, standing up for something with which we agree. But did you get to vote on Tim Cook ascending to the throne?
As Lord Acton explained, power corrupts. Absolute power corrupts absolutely. We may despise the government’s assertion of power over our privacy, but does that mean we’ll like it better when the power is in Tim Cook’s hands? Or Mark Zuckerberg’s?
There is nothing, absolutely nothing, simple and easy about this battle for control over the future. While the details underlying this particular order, cracking a phone of a someone who has already completed his killing, may not make you tear up, it may be different when it’s a dirty bomb that has yet to go off in Los Angeles, and it can’t be stopped because Tim Cook says “no.”
This isn’t to say that I’m with Cy on this one. I’m not. But I’m also deeply afraid of the alternative, as I have no plans to bow down to the technology gods either. The point is that this is a terrible choice, replete with problems and issues that defy simplistic solution, and of all the spectacularly stupid things to say, Manjoo wins the prize for proclaiming technology to emerge victorious.