Apple versus national security: a tough call by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons-Barron’s own blog.


palms in FloridaA relaxing Florida vacation has made me even more of a techno-peasant than I usually am. The issue that now challenges me is the dilemma presented by Apple’s refusal to comply with the U.S. government’s request to facilitate access to the contents of the iPhone of Syed Rizwan Farook, one of the two San Bernadino terrorists, now deceased. It is but the most recent example of the conflict between national security and civil liberties.  I find myself tilting toward the government, but it’s not a clear cut case.

The hope is that the data could reveal whether others were involved in the December 2nd terrorist attack that killed 14 people. The FBI went to court to get Apple to provide the tools to break down the encryption of the iPhone, and a judge directed Apple to do so. Apple is fighting the order.   Apple has said it has tried to help by sending investigators to try to reverse the encryption, but the company is unwilling to create special software for the purpose.  CEO Tim Cook wrote an open letter on Tuesday explaining that creating a system to bypass the security of the iPhone would be an even greater threat to security. Not surprisingly, the head of Google sides with Apple.

Writer Robert Levine ponders in the NY Times whether the government, rather than Apple CEO Tim Cook, should have “more legal and moral authority” to make that call. Levine concludes that the government never recognizes limits to its power to access personal information and that “while nobody elected Mr. Cook to protect our privacy, we should be glad someone is.”

Trying to find the right balance between national security and individual privacy can be tricky. Clearly the U.S. government overstepped its bounds in the level of surveillance exercised by the National Security Agency against the American citizenry. Even the Congress was impelled to step in and curtail such practices somewhat.

Legally, the right to privacy ends with death. Farook is dead. For all of us though, the right to privacy is pretty much an illusion. From the Boston Globe, we learn that more than 1.3 million Massachusetts residents had personal information violated in the last year. It wasn’t just credit card and Social Security data, but addresses, medical records and other financial information. As reporter Deirdre Fernandes makes clear, the perpetrators weren’t just cybercriminals but health insurance companies, pharmacies, wireless carriers, brokerage firms, universities, and more.

Way back in the 1970’s, the Massachusetts legislature created a special Commission on  Privacy. Even then, our personal data were being inappropriately disseminated.  The best the legislature could do was to pass a state version of the federal Fair Information Practices Act, which presumed the privacy of our records could not be guaranteed but held that at least individuals should have a right of access to their own records to be able to correct misinformation.

In light of the reality, it seems idiotic to keep the government from delving into the iPhone data of a dead terrorist.

Still,  it’s not such a cut-and-dried case, mostly because of the global implications. If the FBI can force Apple, or Google, or any other technology hunters and gatherers to share private data, what must those companies do elsewhere in the world. Could China make the same demands of Apple with far more nefarious intent? Could Iran go after Google to persecute dissidents? Camel’s nose under the tent and all that.

According to the aforementioned Robert Levine, the initial legal directive compelling Apple to participate in breaking the encryption was based on an 18th century law, which predates technology and the practices for regulating it. What’s needed now is a thoughtful deliberation among the public and in the halls of Congress about this crucial public policy issue. I fear it may be too much to hope that the Presidential candidates will seriously consider the topic and debate the implications.

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