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The Social Justice - and Privacy Case - for Unlocking the San Bernadino iPhone

The Huffington Post The Huffington Post 26/02/2016 Nathan Newman
MOBILE © lzf via Getty Images MOBILE

If you care about social justice and, yes, individual privacy, you should be cheering the FBI in its demands that Apple supply the needed software to unlock the encryption on an iPhone owned by one of the San Bernadino killers.  Stepping aside from the policy debate over encryption, the request boils down to the FBI asking for a piece of software to unlock an iPhone of a murderer, much as the manager of a storage facility may be asked for a key to unlock the storage locker of a suspect.   

This is not a case of an overzealous government doing dragnet sweeps violating the privacy of blameless citizens, but of a corporation resisting a court order to support an investigation of a single mass murderer tied to terrorism.

Apple may be asserting the duty to protect the right to privacy, but focus clearly on the fact that it is a corporation asserting those rights, not an individual.   Apple asserting such rights is in line with the dangerous legal argument that corporations have constitutional rights that should be treated the same as individual rights.  

This is the argument of Citizens United that unlimited corporate donations cannot be regulated since that would violate corporate free speech rights or that corporations like Hobby Lobby have the right to defy the law and deny their employees contraceptive health care services if that would violate the corporation's religious beliefs.  Progressives rallying to Apple's cause are essentially rallying to the legal legacy of the deceased Antonin Scalia.  

Individuals accused of crimes have full constitutional rights to seek to block access to their property or have evidence wrongly collected excluded from a trial, but it is not the role or right of corporations to decide for themselves in defiance of a court order what constitutional standards of privacy should be. And you can be guaranteed that if they are given such legal powers, they will not use them for the benefit of the public but for their own profits and power. 

Corporate Tax Evasion and Encryption

Apple may be mouthing attractive words around the privacy of their users, but the reality is that Apple has a more specific interest in crippling government investigative powers, namely the fact that it, like multiple other giant firms, are massive tax evaders, shuffling cash and intellectual property assets around the globe.  One study found that Apple shifted a record $50 billion in cash offshore in 2014, paying only 2.2 percent tax on its offshore cash.   Apple leads the pack in the overall $2.1 trillion in profits that U.S. corporations park overseas in places like Bermuda, Ireland and Luxembourg.

Companies like Apple may be promoting unbreakable encryption as a tool for freedom from government oppression, but it's mostly been a tool so far for corporate tax evaders.  A tax evasion trial of top officials at the Swiss bank UBS highlighted the ways encryption stymie tax investigations, with witnesses detailing how private bankers hide sensitive client data under "Solitaire" game tabs on secret drives on encrypted laptops or code computers with emergency passwords to vaporize data on illegal activity. 

Just last May, when Quebec tax authorities showed up at Uber Canadian offices, engineers in Uber's San Francisco offices tried to remotely encrypt their data in Canada.  Tax investigators were seeking to find out if the company was evading local sales tax rules and found that the devices were locking up as they were seeking to review the company's data after a court order.

The cost of corporate tax evasion is hundreds of billions of dollars in lost government revenue: slashed education budgets, less aid for the poor, crippled funding for regulatory agencies, and less investments in our crumbling infrastructure.   Companies like Apple may wave the flag of liberty around the supposed gains from unbreakable encryption, but there are clear costs in the enabling of corporate and terrorist criminality.

More "Rights" for Corporations Means Fewer Rights for Workers and Consumers

Let's be clear, though, that this is not a debate about balancing liberty versus the public interest.  Empowering corporations to evade and slow investigatory court orders results in lost liberty for workers and consumers at the hands of those corporations.  

For most people, the threat of the FBI or National Security Agency snooping in their data is mostly theoretical, but the snooping in their lives by their employers is ever present.   Large numbers of employers purchase personal data and administer invasive personality tests to all potential hires to exclude employees who might join a union or who suffer physical or mental disabilities, then subject the workers they do hire to complete scans of all email sent at work, record each keystroke they make, and monitor their credit scores and other data in evaluating whether to retain them- and crack down on any potential speech or agitation for better working conditions. 

Some of this intrusive corporate surveillance is legal but a lot is illegal, yet employers use every possible assertion of corporate "rights" under the 4th Amendment and related legal standards to block and weaken investigations of the illegal invasions of employee privacy and suppression of free speech with which they engage.  A whole series of court decisions have created more and more restrictive hoops for government investigations of workplace violations in the name of corporate 4th Amendment rights.

When the Obama Administration passed new regulations to bar government contracts for companies engaging in race, gender or other forms of discrimination, the D.C. Circuit Court of Appeals in 2011 threw up new procedural barriers to on-site inspections of companies suspected of wage or other forms of discrimination.   If employers can use legal maneuvers to block many spot inspections by government regulators and have time to hide incriminating data in unbreakable encryption overseas, you have a recipe for employees losing even more rights at work, including seeing increased illegal invasions of their privacy and free speech.  Procedural rights gained for corporations in such investigations are essentially a zero sum loss of rights for employees.

Similarly, corporations engage in invasive surveillance of their customers to extract personal data to serve corporate profits.  Ironically, the iPhone at stake in this debate is a prime example of a device meticulously recording personal data to be transmitted to companies like Apple.   Apple, Google and other corporations have been caught multiple times violating the few laws limiting such data extraction.  Back in 2011, Apple was forced to acknowledge that they were storing data on users' step-by-step travels throughout the day, despite falsely testifying before Congress the year before that they only collected such data "intermittently," leading to lawsuits and government fines in countries like South Korea. 

When Google was investigated for its even more invasive "wi-spy" operation of sending its Google Street View cars up and down streets while downloading personal data from individual wi-fi routers, the company used multiple legal claims to stonewall government investigators around the world. The obstruction and willful ignoring of subpoenas was so extreme that the Federal Communications Commission (FCC) fined the company $25,000 in a 25-page condemnation in 2012.     

As antitrust regulators have considered regulating the invasion of user privacy by companies, such as the delivery of advertisements and search results to users based on collected personal data, tech companies have claimed that corporations have First Amendment rights over the software algorithms that produce web results for consumers using that user data, even if the results are in violation of antitrust laws or otherwise break the law. Again, we see the assertion of corporate personhood rights in a creeping erasure of the ability of government to protect consumer rights.

The First Amendment Should Not Be Used to Defeat Regulation of Corporate Software Algorithms

Apple and its defenders have framed the government's demand for them to create new software to bypass their encryption system on the terrorist's iPhone as a form of "compelled speech" in violation of the First Amendment.  That copyright gives a company the right to profit from software it develops is well established, but saying the First Amendment prevents government regulation of commercial operations involving that software is a step back into pre-New Deal legal doctrine, where minimum wage and other laws were struck down as violating the "due process" rights of corporations.

Ideas have always been melded to hardware since the beginnings of the industrial revolution, but merely separating those ideas into separate computer code should not suddenly give corporations constitutional immunity from government regulation.  

Compelling Apple to produce the code to break the encryption on the iPhone is no different from laws requiring businesses to serve customers of a race, religion or sexual orientation they might disapprove of.  Individuals are allowed to discriminate in any way they choose during their personal time, but businesses operating for-profit do not -- and should not have a similar constitutional right to discriminate or refuse court orders to produce software in compliance with the law.

Is Unbreakable Encryption a More Valuable Social Good than Catching a Terrorist?

Aside from whether Apple as a corporation should be able to assert legal rights supposedly on behalf of their customers, there is the broader policy debate of whether breaking the encryption on the iPhone will weaken encryption security protections for other phone users. 

Putting aside the fact that the court order is for software to break encryption on a single phone physically in possession of the FBI, not remote software that would or could be used to access data on anyone else's phone, what's not clear is whether we as a society want unbreakable encryption.  

The tax evasion problem detailed above and the potential of terrorists operating without restraint are just the most obvious examples of the problems that will be deepened if the goal of unbreakable encryption is achieved.   Apple is appealing to the fears of the public about invasive surveillance by the government, but such encryption is just as liable to further empower illegal violations of worker and consumer privacy and free speech, while allowing corporations to bury evidence of wrongdoing behind encrypted firewalls. 

I personally share plenty of suspicions of the national security state and think Edward Snowden performed a signal service in revealing the extent of National Security Agency spying on the public. However, extending exactly that kind of greater transparency via strengthened whistleblower protections and other legal checks on government overreach, including greater criminal liability for violations of citizen's privacy by government officials, are a surer route to restraining the danger of government spying.   

Empowering corporate constitutional rights or allowing corporate and terrorist wrongdoing to be buried behind encryption out of fear of the government, as defenders of Apple seem to be arguing for, is completely misguided.  It's part of a techo-libertarian fantasy that technology kludges are a substitute for the political interventions needed to both promote the public interest goods that we want from government while restraining its excesses. 

Unbreakable encryption is just such a technological kludge that will abet more vicious problems of criminal, terrorist and corporate lawbreaking than any public good it might contribute.  And if we are to have the debate on its virtues, it should happen in a democratic forum of elected representatives, not in a courtroom with a corporate executive supposedly standing in for the interests of the public.

Opening the San Bernadino iPhone is exactly the limited restriction on privacy we should support when a mass murder associated with terrorism happens--and more importantly, a court has decided it is a proper approach.  Apple has billions of dollars in offshore accounts that they can use to make their views known in public debates if they want to change the law, but Apple should not be able to assert any form of "corporate rights" to overturn that court decision.   

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