In Silicon Valley vs. the Constitution, rule of law should trump corporate interests

By Charles Rappleye

Apple wants to take a bite out of the Constitution

Apple wants to take a bite out of the Constitution

What a disappointment to learn that the government has come up with an alternative way to bypass the Apple iOS 8 password protections to open the iPhone of San Bernardino shooter Sayed Rizwan Farook.

Not that I don’t want the government to know what’s on that phone — the info could expose contacts in the ISIS terror network, a threat to all Americans — but I’m disappointed that the discovery could win Apple an indefinite stay in its contest with the government. The questions of privacy at stake in that debate are fundamental, and I’d like to see them resolved soon.

To me the facts of the case could not be simpler. The government is pursuing standard procedure in a criminal investigation, obtaining a court warrant to search the communications of a dangerous killer. Apple bridled at the request, seeking to protect its business model by upholding the privacy of its customers.

That’s fine for Apple; any corporation would be remiss in failing to protect its business interests. But it’s also fairly absurd. Most subjects of government search warrants would prefer to simply decline such inquiries. That’s why the government obtains a warrant. For Apple to say no is an act of hubris so brazen as to appear delusional. “Opposing this order is not something we take lightly,” Apple CEO Tim Cook said in a public statement, but oppose the government they did. As if the court warrant represented a request, and not an order.

What Cook seems not to realize, and what appears to be lost in the public debate, is that Apple’s challenge to the government goes to the heart of the definition of the state itself. That argument was joined more than 200 years ago, when Americans rebelled against the crown to establish a new nation. One explicit plank in the colonialists’ bill of particulars was illegal search and seizure. They never contested the right of search per se, but determined that the process should be governed by public authority administered through a warrant issued by a judge. Triumphant, the rebels reformed the state, rendering it representative, instead of monarchial, but a state nonetheless, with express powers to search, to compel, to punish, even to execute miscreant citizens.

Much has happened since, but the fundamentals remain the same. Forbidding and remote as it may sometimes appear, the state remains a construct of the people, a bulwark of public interest as opposed to private. It is through the state that we defend against enemies foreign and domestic, that we regulate private activity as it impinges on the lives of others, and by which we seek redress against injustice. In this particular case the action of the FBI clearly fits the paradigm; there is no question of overreach in pursuing a court-ordered search of a terrorist’s telephone.

But by the public reaction of citizens as well as the many corporations who lined up in support of Apple, it appears the state, in its many transgressions, has forfeited the allegiance of its people. Mistrusting the state and its motives, these voices seem to place their faith in corporate entities to protect their privacy and secure their interest. This is shortsighted and naive, but it reflects the muddle of what might be termed postmodern politics. The people are turning their backs on the old institutions without thinking through the alternatives. We are stumbling into the unknown.

There is reason enough for the confusion. The tech world in particular is dominated by a youthful culture that prizes innovation over experience and considers itself to be the harbinger of a new age. Thus the executives at Apple, rather than comply with a court order, mull its merits and decide how they will proceed. “We had long discussions about that internally,” Larry Cook explained. “Lots of people were involved; it wasn’t just me sitting in a room somewhere” — as if that relieved Apple of the burden of compliance with the law.

The government has played its part as well, illegally and senselessly collecting massive amounts of “meta-data,” its operations exposed by Edward Snowden in a classic case of bureaucratic secrecy run amok. For many, this was an instance of misconduct whereby the state has forfeited its legitimacy, especially in the arena of privacy. It’s an easy position to take, but a dangerous political platform. To me such misconduct warrants wholesale reining-in of the “intelligence” bureaucracy, but that should not mean abandoning the field of cyber-security.

Today’s world provides plenty of fodder for this kind of loose thinking. State entities represent, in many parts of the globe, everything that American politics is built to oppose — despotism, religious and political persecution, sexual repression. As foreign observers we are inclined to dismiss these states wholesale, lumping them collectively as the enemy, and the Internet giants with their fantastic technologies of instant and private communication as potential saviors. This sensibility has even permeated the foreign-service branches of the government, which support expanded encryption as a counterweight to autocratic government like China and Syria, leaving the onus of the Apple prosecution to the FBI and Department of Justice, agencies more closely concerned with the issues of domestic government.

Again, this idea of subverting foreign states is hopeful but naïve. The world’s disparate dissidents are seeking to reform their respective states, or to overthrow them, not to abandon the concept altogether. They realize by and large that the only alternative to the nation-state is anarchy, the contest of might that the state is ostensibly designed to mediate. The principal exception here is the ionically-named Islamic State, which conceives of a state-less, border-busting Koranic empire.

Of course, we’re not looking at an Islamist revolution here, but an abdication in favor of Apple. Is there a problem
with that?

Keep in mind, while Apple is assuming the role of champion of the public interest, it remains a profit-seeking corporation and can be relied upon to act as such. Thus in opposing the government’s request to access Farook’s phone, Apple warned of wholesale breaches of security that would threaten to open customers to “hackers and criminals who want to access [personal information], steal it, and use it without our knowledge or permission.” This was an extreme exaggeration; as the government pointed out, it would deliver the phone in question to Apple where their engineers could work in perfect secrecy. Apple already has a division devoted solely to compliance with government orders; this effort would fit in nicely.

More telling, Apple has already made concessions that compromise user privacy. Two years ago, again as revealed by Edward Snowden, the company helped the NSA build in “backdoors” to ease secret government snooping. In China Apple has made compromises in allowing government access to source code that exceed any such provisions requested here in Apple’s home country. Even in the Farook case, Apple readily opened the shooter’s backed-up cloud files to the government, erasing any pretention to preserving customer “privacy.” The company drew the line at the phone itself, lest it compromise the device’s market profile.

Especially galling to me is Apple’s disdain for the All Writs Act, the law cited by the FBI in its search demand. The law dates from 1789 — a disqualification, in Tim Cook’s view; as he sniffed in his interview with TIME, “You can tell it was written 200 years ago.”

I would remind Cook of an important body of legal doctrine drawn up and endorsed two years before that — the U.S. Constitution. That may be too old for forward thinkers like Cook and his friends at Apple, but as the court proceedings in Riverside would suggest, for now and until further notice it remains the law of the land.