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FBI vs Apple: Defining Our Constitutional Future

The Huffington Post The Huffington Post 19/02/2016 Mark Weinstein

The landmark battleground lines have been drawn in the fight between the government and the private sector regarding encryption technology. The FBI wants to get into the technology business. Wait, strike that. They want to get into our business by cracking the code and being handed the key to unlock the heretofore-impenetrable privacy technology that protects our business, all of it. As Americans we cannot let this come to pass. It violates the essence of our democracy -- our right to privacy.
But let's step back for a moment. The recent, senseless terrorist tragedies in San Bernardino, Paris and so many places, are mind benders. In their investigation of the San Bernardino attack, the FBI, understandably, wants to look under ever rock to prevent anything similar from occurring in the future. Hence, the court order demanding that Apple create a technology to crack the code on their encryption technology to assist the FBI's investigation; which includes iPhones with protected data the FBI cannot currently access.
Encryption protects us. That's not just me ranting either. Back in July of 2015, some of the world's top security technologists said the same thing, concluding that governments shouldn't have special access to encrypted communications. Doing so would put the world in a whole lot of danger and give governments the kind of information that can be used nefariously to threaten, cleanse, control, prejudice, and violate their citizenry.
The Information Technology Industry Council (ITI), recognized as the global voice of the tech sector, agreed, declaring the following: "Encryption is a security tool we rely on everyday to stop criminals from draining our bank accounts, to shield our cars and airplanes from being taken over by malicious hacks, and to otherwise preserve our security and safety."
That sounds pretty good to me. So does our Constitution's Fourth Amendment. And for that matter you can throw in the United Nations Declaration of Rights, which states: "No citizen should be subjected to arbitrary interference of their privacy, family, home or correspondence." Sure, okay, but that's just the United Nations, right? Who cares?
We all must care. Make no mistake about it. This is a battle for our nation's very soul. Victory is not an option but rather the only course, which is why it requires a general to lead us. This individual must be a voice of reason, savvy in technology, a scholar of constitutional law, and a defender of humanity. He must be willing to stand up for Americans and people the world over. Does such a person exist? The answer is a resounding "yes." That man is Apple CEO Tim Cook.
Cook has taken what could have been a behind-the-scenes conversation and government demand about surveillance and placed it onto a national forum. Specifically, the FBI wants Apple to change its iPhone operating system, not to make it a better experience for users, but rather to make it an easier experience for the government to hack straight through a rogue back door to get your information. As Cook aptly explains, while the FBI portends that this is a one-time hack -- the reality would be unimaginably and likely catastrophically far greater.
In an open letter to Apple's customers, Cook outlines the situation in no uncertain terms. Smartphones are an essential part of our lives where people store a lot of personal information. Apple's job is to protect that information from criminals. To date it has done that very well. If you remove that ownership and management from Apple and give it to the FBI, you take away Apple's ability to control the situation. You breach the trust between Cook's company and the consumer. You basically call into question the credibility of all business.
Do you really want to trust the government to be responsible as the gatekeeper and key master to your information? Did we learn nothing from Snowden and the NSA's travails? As Cook points out, if you open Pandora's Box here, you give anyone the potential to unlock any phone. That's not a back door as the government projects it. It's a multi-lane interstate freeway, a technology Autobahn for bad people to access your life. There simply isn't any way to guarantee control, responsible handling, or accountability.
As Cook writes, information is only as secure as the protections around it. The government contends it would only use such an invasive tool once on one phone. "Trust me," says the ghost of Richard Nixon. No thank you. If you create a master key, then all doors become vulnerable, not just the one you use it on. Every privacy policy listed anywhere simply becomes an exaggeration of the truth if not an outright lie. You're not just giving the good guys access; you're giving everyone a back door. It is absurd to think that the keys to the proverbial kingdom of information would somehow remain sacrosanct. Heck, the Pentagon is not even immune to hacks by the Chinese and Russians.
Our government would have you believe that such access is the difference between life and death for countless American lives. Yet the FBI admitted last year that the Patriot Act's invasive snooping powers didn't crack a single major terrorism plot. In 2014 I attended a conference where James Dempsey, Board Member, PCLOB (The Privacy and Civil Liberties Oversight Board), stated that "after 14 years of analyzing the nation's phone call data collected because of section 215 of the Patriot Act (telephone metadata program), not even one terrorist or plot was discovered that wasn't already known."
So it's not even a debate about the greater good as it is about the no good that comes from the FBI's good intentions. As Cook says, "We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them."
Remember during the McCarthy Era when we hunted down American citizens with rumors and hidden agendas? There was no precedent for such behavior. It went against the core of being American. Cook correctly points out that there is no precedent here either in using American business to expose customers to a greater risk of attack. We aren't and can never be a totalitarian state.
If we give in here, where does it all end? It doesn't. As Cook writes: "The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone's microphone or camera without your knowledge."
America is a beacon to the world in freedoms of thought, action, and speech. We may not always agree with the results or see eye to eye with the ideas, but we defend the laws of our land and our rights as people.
Peggy Noonan has referred to our privacy as being connected to personhood. It's how we think and feel about the world around us. So what happens when we know the government can see and read those thoughts? They no longer belong to us. We just become projections of what we think others reading it want to hear. Cook wants to protect our privacy not as an Apple advocate, but as an honorable American and wise human being. That's why people such as Edward Snowden, and perhaps the king of data, Google CEO Sundar Pichai, are coming to his defense. Cook is to be commended for leading this war for all of us, a war we must help him win.
Steve Jobs handpicked Tim Cook to lead Apple, and by doing so, he may have left his most important mark on human civilization for years to come. Not because of the product rollout Cook has presided over, though that in itself is quite impressive. Rather, Tim Cook is heroic for his courage, integrity, and his standing for what defines our nation. Tim Cook is a great American. We must all rise, put our petty political differences aside, and take a stand with him for the good of our nation and the future of humanity.

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