The following was originally published to facebook on February 17, 2016.
(1) It is an important distinction that Apple does not currently have the technology to break the contents of the phone; to comply with the court order, they would have to set their engineers to the task of creating one. It is absurd that the government should essentially conscript Apple’s security engineers to do its bidding; it’s as if they were trying to require a landlord to personally swing the battering ram at a tenant’s door, or requiring some contractor to invent a better battering ram than the ones currently on market. To me, that’s ridiculous; if the government needs to break down a door, they break down the door themselves; if their rams aren’t good enough or the agents swinging them aren’t strong enough to get the job done, that strikes me as the government’s problem and no one else’s.
(2) In the area of cybersecurity and surveillance, I have precisely 0.0% trust in “checks and balances, democratic accountability, and transparency” to restrict government, and you should not either. It was been demonstrated over and over again that our national security apparatus has absolutely no respect for the right to privacy of its citizens; they can and do take all of our data that they can find wherever and whenever they find it. When they are found out for doing this, they are not held accountable; not by the President who supposedly commands them, not by Congress, not by prosecutors, not by voters (to whom fundamental liberties should never be trusted), and only rarely and grudgingly by the courts. I do not trust that a tool to crack iPhones will only be used on an ad hoc basis pursuant to lawful warrants.
(3) I don’t think I can “put aside that a safe necessarily contains measurably less information than an iPhone.” When judging an invasion, what is being invaded matters a great deal. There are good moral reasons, in addition to the legal ones, why the government must climb a taller hill to search your car than to search your garbage cans, and still a taller hill to search your house. A safe might contain a trigger for a WMD, or certain secrets or other information, but these things are finite in scope. Increasingly, a smartphone is a person’s most intimate possession: it contains logs of a huge percentage of our communications and our social life, it tracks our comings and goings, it tracks our health, it records our most intimate thoughts, and the data contained within it can be used to construct a profile of you that reveals your subconscious — in other words, it can know things you don’t even know about yourself. To me, this difference in degree of the sensitivity of the thing to be invaded at the very least approaches creating a difference in kind.
(4) In the vein of (3), let’s try a different example. Let’s say there is a terrorist somewhere with a WMD, and he is the only one who knows where it is and when it will go off, and all of law enforcement’s efforts to discover the WMD or to get him to divulge it have been fruitless. Let’s also say that there exists in the world an eminent neuroscientist, who is believed to be able to create a Mind Reading Device, but who has not yet done so, for whatever reason. Ought the government be able, with a showing of probable cause and issue of a lawful warrant by a judge of competent jurisdiction, to force the neuroscientist to create the Mind Reading Device and use it on our terrorist, in order to discover where the bomb is? I don’t know your answer, but mine is a definitive HELL NO. I believe there are places that the government ought not to be able to invade under any circumstances, no matter the mechanism, no matter the stakes. We have rights to privacy and autonomy and against self-incrimination, and those rights say that there are lines the government may not cross, full-stop. These hold even if line is protecting a dangerous terrorist, or if technically the government isn’t crossing those lines itself, but are forcing some third party to cross those lines for it.
Now, the data on your smartphone isn’t quite a Mind Reading Device(although it is closer than is popularly understood), and I do think that if the government can get a warrant to open a smartphone, it is well within its rights to try to do so. The hypothetical is just to demonstrate that not all invasions are created equal; that what is being invaded certainly matters.
(5) Setting aside the instant case, what Apple is mostly concerned about (and, for that matter, what I am mostly concerned about) is that this is part of a broader effort by law enforcement and the national security community to require backdoors to law enforcement in all encryption protocols — not just the Mickey Mouse ones Apple apparently uses to protect our iPhones (seriously, it’s not a good look for them that it’s possible for them to crack their encryption, regardless that apparently the FBI isn’t able to. A strong encryption protocol is computationally unbreakable.). In addition to the fact that this would effectively end any meaningful right to privacy, it would have devastating consequences in the lives of ordinary people. The modern economy depends on secure communications; everyone has to be able to trust that when they transact business over the internet, or when they store information on connected devices their information will not be stolen. That’s only possible with strong encryption, and every cryptographer and technologist agrees that putting backdoors into encryption protocols would necessarily make them vulnerable to attack and impermissibly insecure. To deny this, as national security goons thinking only about increasing their own power do, is the equivalent of climate change denialism, or evolution denialism. Technology isn’t magic.
(6) Back to privacy: I am tremendously concerned about the fact that our government is building a surveillance operation unprecedented in the history of the world, with the power to spy on anyone and everyone at any time. If an authoritarian government were to come to power in the United States, it would find it already had every intelligence gathering capability it needed to become virtually invincible, immediately. And I do mean unprecedented: think about how different the history of the world would look if every one of Paine’s pamphlets was reporting back to Parliament the identity of everyone who read them, and exactly how far they’d gotten, and where they’d been reading them, and with whom they’d shared the pamphlet. For all the power the Nazis wielded, imagine how much tighter their grip — how much more futile the resistance — if every German carried in his pocket a device which tracked his every movement and had many items in his home which the SS could turn into a live audio or visual recorder at any time without his knowledge or his having any power to stop it. That is the modern condition, minus evil intent and encryption. I don’t believe President Obama or his two relevant predecessors or any of his aspiring successors have sinister designs for the country, but I am also not naive enough to believe that the United States is somehow magically immune from the fates which have befallen many other once-democratic governments throughout history. Strong encryption — without backdoors designed for governments that may or may not be trustworthy, that criminals and foreign governments can exploit — is the only technological bulwark against complete dystopia, the only way to ensure that our communications aren’t being monitored and our data is secure. But the political project of the FBI — and willing fools like Hillary Clinton and the Washington Post editorial board — has been to advance this fiction about “golden keys” to encryption, all in the hope of increasing their power and making their job easier. It is the most potentially disastrous policy proposal supported by purportedly serious people in the country today. No thanks.
Tom Lawrence 
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