Prevailing
opinion appears to be coalescing against Apple’s refusal to unlock the San
Bernardino terrorists’ smartphones. To many,
Apple is more interested in protecting its brand than cooperating to protect
our national interests. As a practical
matter, it would seem highly unlikely Apple would adopt a position contrary its
financial self-interests, so the assumption that there is an underlying
business motivation has some merit. Yet,
Apple has staked its flag upon privacy issues.
As Tim Cook, Apple’s CEO’s, expressed in a rank and file letter today,
the issue is not about unlocking one phone. There are bigger issues at stake.
Beyond
the immediate, the Apple controversy has raised policy discussions about the need
for government agencies to have formal backdoors to encrypted communications
and data. The basic argument is that
criminals and terrorists can operate in the dark by using commonly available strong
encryption like AES 256 ciphers and there is no practical way for authorities
to de-encrypt and access information critical to thwarting serious criminal activities. I confess, the arguments for backdoors are
compelling. But, before we rush headlong
down backdoor paths, I would suggest we understand where they could lead, and
in order to do so we first must uncover the substance of the issue.
Nobody
would assume the Navajo language, while virtually undecipherable and used during
World War II for secret communications, would require a government back door. For that matter, whether it is undecipherable
ancient Linear A script or modern English, language itself is a form of encoded
information. So why does the Government believe
a backdoor is required for modern encrypted communications and stored data? Is there something different about encrypted
information than any other undecipherable or obscure human language? Perhaps, it is the ease of deciphering an
encoded communication that is the essential difference. While on the surface this seems to be a
distinction without substance, it could be rightfully argued that machine
generated encryption is sufficiently non-human in origin to be different. In other words, sufficiently unbreakable
encryption exceeds the natural human capacity to devise and initiate such as a form
of expression in the absence of a machine.
Thus, it is not a form of protected human speech. On the other hand, there are many forms of
human expression that defy easy interpretation or understanding. In fact, it can be at times so abstract that
no machine could decipher it. As Picasso
once famously said “Painting is just another way of keeping a diary.” I think
we would agree deciphering Picasso’s visual diary would be no easy task. Entire art departments devoted to that endeavor
are no closer than the day he sat down with brush in hand. But, more to the point, ciphers have been used
since antiquity, some being more artful than others, for good and bad,
precisely for secrecy. Even in more
recent pre-computer times, anyone could employ a relatively simple, mathematically
unbreakable Vigenere cipher scheme. So, we again are left with the question of what
is the real difference. Whereas a
Vigenere cipher requires only paper, pencil and a random passage from a secret book,
modern encryption achieves these ends in a much more efficient and pervasive
way. Even the Vigenere cipher itself is
available as one-time pad software, albeit grossly inefficient for real-time
communications. So, it would seem the real
difference is that it is too easy, too accessible and too quick.
With
any “too” controversy, the basic contention is that something is too
advantageous. It upsets accepted norms
or understood conventions of the relative distribution of power. This is exactly what government security agencies
argue. There is nothing more principled or
deep about it. They don’t want criminals
to enjoy an advantage, because modern encryption is too good, too available and
too uncontrolled. Of course, unfair advantage
is a matter perspective. I, for one,
hope that law enforcement enjoys every possible advantage over criminals. But, I also don’t want criminals accessing my
sensitive private data either. The
problem with backdoors is just that. It
is another way in. But insofar as law
enforcement and national security are concerned, for most of human history,
even up to and including the advent of modern communications, crafty criminals
enjoyed the advantage when it came to secret communications. It was not until the communications age that phone
tapping and eavesdropping came about and gave law enforcement a leg up. Phone networks became the places where most
communications occurred, and intercepting communications became an essential
part of law enforcement’s repertoire. Of course, this advantage still required a
showing of probable cause before a warrant would issue. So, basic police work was still needed to show
a good reason. However, many claim that even
these protections have been eroded under the banner of pressing national
security concerns since 9/11 under the
FISA court. Its critics point out that the
FISA court denied a paltry .03% of over 30,000 requests for electronic
surveillance searches. Moreover, critics
complain that the FISA court operates in secrecy without public access or
visibility into its proceedings and have permitted what amount to large-scale,
sweeping general search warrants. Yet,
the FISA Court defends itself by noting that many of the approved requests were
substantially modified before they became finalized, and it scrupulously
protecting individual liberties from unreasonable searches. Be that as it may, law enforcement’s technological
advantage has been further magnified with the growth of big data, massive private
and public transactional data stores, and a proliferation of public
surveillance cameras. For the first time
in history, a human’s location, phone calls, spending and buying habits, social
dialogue, extended family members, credit history, favorite TV shows, eating
habits, topics searched online, and even books read can be found and are
subject to government access, subject to legal process. For all the talk of “cloud security”, it may,
ironically, create the greatest vulnerability to personal privacy yet. Private papers are no longer tucked away in desk
drawers, stored on backroom computers or copied away on CDs in shoeboxes,
immune from warrantless search and seizures.
Now, it is somewhere else in the ether, under the convenient management of
commercial parties. Cynically, the cloud
is a one-stop shop for subpoenas, and in many instances your information is
accessed without you even being notified.
We are leaving “digital footprints” all over the world and it provides
law enforcement with a wealth of investigative advantages. This is offered up as a social good that
helps make our communities more secure than ever before. It is true in many respects. But, we would be wise to be aware of its
potential costs so as to avoid being short-changed on liberty.
The
classic approach that courts use to address issues like the government’s need
to access encrypted private data versus the right to free expression and to be
secure in papers and effects is called substantive due process analysis. The basic inquiry is whether the restraint or
infringement upon a particular fundamental freedom is the least intrusive possible to achieve a compelling need of the
state. Yet, we ought to carefully think about
whether this standard will adequately protect fundamental freedoms. The US Supreme Court found a new right of
privacy in the US Constitution in Griswold v. Connecticut. In so doing, it did as much to expand individual
privacy rights beyond traditional property-based concepts as it did in
subsequent cases to whittle them away with a myriad of exceptions using
substantive due process reasoning. Even
the very existence of the right of privacy is born out of relativism. It only exists insofar as a reasonable expectation of privacy exists,
which turns on what most people think is, or treat as, private in ordinary
course. The problem is that social
behaviors can change relatively quickly.
In the case of technology, there is hardly any greater prime mover of
behavioral change afoot. Thus, I fear
right to privacy will wither under the rapid transformations in attitudes
brought about by the persistent infiltration of technology into every aspect of
our lives.
As
we trek along the evolution path of man and machine, questions around
encryption will continually arise. Yet,
the core of the root conflict goes beyond encryption, in the sense that it is about the role of society at large versus the
individual in relation to who really governs a new form of emerging omniscient intelligence
that can increasingly see, record, and analyze the most trivial aspects of our
daily lives. It is only a matter of time
before machine augmentation of human bodies is commonplace. As it is Amazon Echo sits in living rooms
listening to every word spoken awaiting to assist. Every large city is populated with cameras
monitoring public places; automatic license plate readers innocuously record
passersby, and your mobile phone tracks your every movement. The fundamental question becomes, what are
the limits of government access to the communications between mind and personal
machine. It is a widely held belief that
one cannot be compelled to testify against oneself. The brain, with all its memories,
recollections and thoughts, are free from government intrusion. We have even outlawed torture against the
worst of our enemies to pry free secrets relegated to the recesses of the
mind. Yet, what cannot be pried out by
coercion, will readily be available through not only backdoors in the name of
security, but more likely through a gladly opened front door. In our emerging technology-infused society, your
coffee pot becomes a snitch for somebody.
Personal privacy will shrink to the
space between your ears, as smart refrigerators, TVs, cars, lights, and so on
become an ever present life companions. There will be no expectation of privacy
because it will have been given away long ago in exchange for the innocuous promise
of convenience and ease. This, then, is
the risk – to be lulled into the complacency of digital convenience served up
by a myriad of eager companies aiming to please.
Some
may argue that backdoors are the price of security in an increasingly dangerous
world. Access to powerful tools of
secrecy and deception have given bad actors too much power, and the playing
field needs to be rebalanced in favor of law enforcement. I would argue that we merely are reverting to
the status quo and this is not so much a new battle as much as a familiar
conflict between individual autonomy and state control in pursuit of
security. Some argue that the stakes
are higher than ever because of the threats of modern terrorism, global crime
syndicates, rogue nations, weapons of mass destruction and a host of other emerging
phenomena. I’m not so sure. History is replete with successive
generations of wholesale slaughters of city inhabitants by hostile invaders,
mass enslavement, savage conflicts and global pandemics. I find it unfathomable that we are in any
more precarious situation than those preceding us. That said, I have no interest in revisiting the
Middle Ages, either. These issues
require significant reasoned discourse with an understanding that technology
will not stop and is accelerating at an ever-quickening pace. The ultimate question will be, in whose hand
or hands this awesome power will sit. I
find no more comfort in Apple or Alphabet guarding privacy than good old Uncle
Sam. As between them, I would bet on the
one that has the greatest guarantee of human freedom in the history of mankind
rather than a corporate charter of maximizing profitability for shareholders. Ultimately, it will fall upon those in black
robes covetously protecting our freedom; otherwise, I don’t think we would
stand a chance against technology in anyone’s hands. Whereas Apple seeks to
preserve and grow its profits, and government bureaucracies seek to preserve
and expand power, it is the acolytes of the Constitution, unencumbered by
neither, that can best preserve liberty.
So, I say good for Judge Pym for the time being, but he must jealously
guard liberty and understand there is more to privacy than mere expectation by
custom. Privacy is inherently human and
our machines cannot be allowed to make us less so.