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Why Apple is right and the FBI, Trump and Obama are wrong

Why Apple is right and the FBI, Trump and Obama are wrong

You are either with us or with the terrorists. That is the message from the Republican presidential candidates in reference to, well, take your pick: Trump's promise to build a wall at the border with Mexico; Ted Cruz's demand that Muslim neighbourhoods be patrolled and secured; the call to boycott Apple following its refusal to comply with an FBI demand (now apparently rescinded but by no means forgotten), to break into the phone used by one of the perpetrators of the recent San Bernadino killings.

This last example has raised some interesting moral and practical dilemmas. It begs the question of what is more important: encryption to prevent data theft, cyber crime and cyber terrorism, or giving law enforcement tools to break that encryption in order to fight those kinds of crimes. Of course, many but not all (see my last blog post) conservatives side with the FBI. It is a shame that the Obama administration sides with them too. Yet the more thoughtful analysts recognise this stance as a false choice.

Getting Apple to break into an iPhone will require it to invent software to meet that end. Such software, once in the wild, could be used for ill as well as good, by terrorists moving online and towards cyber crime (the next logical step for jihadist groups?), or by repressive governments that would feel emboldened in demanding similar tools be invented to suppress dissent.

The two arguments I find the most compelling concern the constitutionality of the original demand. Firstly, If Apple, and by extension its engineers, were  to be compelled to invent technology to snap its own encryption software, it would have involved its employees having to write code. By any lay observation of the first amendment, code is a form of expression and thus protected under the US constitution. Expression shalst not be compelled.

The second argument, a more philosophical one, concerns the fifth amendment that protects American citizens against self incrimination. It includes the right to have private thoughts that no government can forcefully reveal. What has this point got to do with a dead terrorist's cell phone, I hear you ask? Well, it all comes down to what mobile devices mean to us. Are they simply computers, or, as John Gruber reckons, are they "in some way an extension of what is in your head"?

With our tablets and iPhones, we often write down our passwords, our thoughts, our to do lists. We construct emails about all manner of personal matters and keep photos of cherished memories. Many of these things, specifically those actions that convey thoughts and feelings, would, prior to these technological advances, have been expressed either in a private diary or, more likely, have been locked away in our soul, ready to be recalled when necessary. A phone number here, a passcode there. 

If we start from the premise that no government should be able force you to reveal what you are thinking, then the logical conclusion should be to assume that no government should be able to access your phone, being as it is, in essence, an extension of your brain.

Detractors would point out that the FBI isn't coming for you, the good guys. They want to get the bad guys. Yet what they are asking for is a way in, a key, if you will, which, once made, can be used again and again. Today, that equates to opening a naughty child's locker.

But tomorrow? What if corporations use that key to access your health data, or a boss utilises your phone's location for "productivity reasons"? Far fetched these scenarios may seem, yet surely we ought to be on the side of those wish to keep them that way, of those who want to ensure that such a key is never created? 

Update: The FBI has now claimed that it has gained access to the San Bernadino phone without Apple's help. The law enforcement agency has likely enlisted the assistance of a third party in this endeavour and the smart money is on an Israeli start up. Apple has called for the FBI to share what it knows, so the ball is now on the other foot. That a tech firm is racing to find a fix for a security breach in its software is nothing new - it is a battle waged every day against hackers and foreign governments. Yet what is new is that the war is now extended to a fight against Apple's own government.   

A world turned upside down

A world turned upside down

A thoughtful conservative

A thoughtful conservative