Apple, led by its CEO, Tim Cook, has defied a court order to unlock an iPhone used by one of the two alleged terrorist attackers in San Bernardino. For the writer in me, I cannot imagine a more fascinating story. I’ve been itching to write this column all week even though I’ve known how hard it would be to not stir up your deeply held positions on any number of different issues, the result of which might convince you to stop reading, unsubscribe, or use the sort of language typically reserved for a driver you find yourself stuck behind. For five miles. At the speed limit. In the fast lane. With his turn signal blinking.
I’m drawn to this story because I take pleasure in trying to understand how technology is changing the way we work, live, and connect. I’m also fascinated by Americans’ relationship with their institutions, culture and traditions. Apple’s resistance encompasses all these issues and gives us a glimpse into the relationship between one of the most valuable and powerful companies in the world, its consumers, the government, and the rule of law.
Apple’s bases its argument on a mistrust of the government’s willingness to limit itself and a rejection of the Executive branch’s interpretation of the law. Absent Congressional action, Apple contends that the FBI has no authority to compel the company to hack its own phone. Apple also insists that this action would be just the first of many inevitably limiting our freedoms.
We all should be sympathetic to these core positions. The Federal Government employs a staggering 3.75 million people (excluding the Armed Forces). Systems produce mistakes that are proportional to their size. Hence the Feds have produced some mighty failures that are too numerous to repeat here. Conservatives argue for smaller government in part for the same reasons entrepreneurs and small company employees prefer their arrangements: we believe that smaller institutions can be much more nimble and productive than supersized ones. It’s why Ronald Reagan famously said the nine most terrifying words in the English language were, “I’m from the government and I’m here to help.” Apple’s argument recognizes that.
But this does not make Apple a bastion of conservatism. Apple invokes the language of conservatives to shelter itself from participating in one of the government’s functions that conservatives find crucial and without substitute in the private sector: law enforcement. Here’s where Apple’s position starts to weaken.
Subpoenas provide a narrowly-defined circumstance: Apple wouldn’t have to cooperate anytime law enforcement just requests it. By subjecting the process to legal arguments and the ruling of a judge, the process wouldn’t be capricious.
No slippery slope: As Holman Jenkins writes in The Wall Street Journal, Apple can both assist the FBI in this one case and go no further. That’s because the company can hack the privacy security in the device in question (iPhone 5c), but newer models have additional features that Apple’s hack could not circumvent.
Secrets can be secured: Apple implies that were it to cooperate, its hack would go public, compromising the privacy and security of millions of its users. From the President’s “nuclear football” to Coca Cola’s secret formula, institutions can safeguard their secrets. With over $200 billion in cash, Apple could safely warehouse whatever tools it provides law enforcement so that they never see the light of day.
Assigning a dollar value to human life: By citing the risk of millions of iPhone and iPad users having their privacy compromised by hackers, Apple leaves itself exposed to the sort of arguments best left to actuaries: how much is a human life worth? In effect, Apple argues that the potential economic harm hackers could inflict exceeds the value of a single human life who might be saved by cooperating with law enforcement.
While Apple’s concerns about government overreach are valid in many other domains, here they hold less water. Apple should comply with the judge’s order.
Its usefulness as a precedent beyond this moment isn’t clear because in the standoff between encryption and hackers, even those backed by subpoenas and warrants, encryption is winning. (Here’s an article that explains why in laymen’s terms.) If the lead holds, either law enforcement will have to turn to different tactics, or tech companies, consumers, and elected officials will need a new bargain to accept legal hacking, knowing that invites illegal intrusions, too. I’m inclined to hope for the former, though I know passions run deeply on both sides. That’s why this issue exposes so much of what divides us as a nation.
This is just the beginning, by the way. Whatever you think about the nastiness of the FBI-Apple back-and-forth, it’s nothing compared to what awaits Apple in places such as China. Will Apple bow to authoritarian, repressive regimes if they threaten to stop it from doing business in those countries? That’s when we’ll see how principled Apple (and other tech companies) really are.