Dear America,
The federal government's efforts to conscript Apple into its digital decryption force are disturbing in two ways. First is the attempt to compel a publicly held corporation to act as a branch of the government and do the government's bidding, and it makes no difference what that bidding is. It constitutes nationalization of a private enterprise, and that is anti-democratic. The ultimate consequence of success on the part of the government in this Apple case would be to authorize future conscription of not just corporations, but of you and me as well, and not just for military service in a time of national peril, but for any reason. Remember the immortal words of Mitt Romney: corporations are people too, which they are under American common law. A military draft is one thing, but a draft for the furtherance of virtually any governmental purpose is another.
But the second discomfiting aspect of the Apple case is the rationale being used by the government. The premise of the federal case is that only Apple can program entry into the phone in question without tripping the security protocol built into the phone's software, that is, erasure of all data if someone tries ten times to enter a password that is incorrect before entering the correct one. That argument implies a much broader proposition: that anything that is inscrutable to the government is improper, or worse, illegal. The fourth amendment to our constitution gives us the right to security in our "persons, houses, papers, and effects against unreasonable searches and seizures." But if Apple can be compelled to assist the government in violating that right, albeit in the case at hand there may be probable cause to search the iPhone in question, they can be compelled to assist in any search the government deems necessary. And more broadly, any person could be drafted into government service for penetration of the privacy of any other person, which requires by implication that no matter is sufficiently private to justify invocation of the fourth amendment. And one more thing; if Apple can be made to intrude into private matters, is the next step the effective proscription of privacy that precludes government access. Remember that there is no warrant in this case as the owner of the phone in question is dead, and there's no one to serve with a warrant, so the existence of probable cause is assumed, and no judge is making a determination that a warrant is justified. Should the government be able to search and seize without a judicial determination of probable cause? If so, the fourth amendment becomes a nullity, and no intrusion into private lives will be precluded.
Of course, the public is being seduced by the presumed need to ferret out the associations of the San Bernardino murders, and I concede that to the extent that the records stored on that phone may disclose the identities of cohorts and coconspirators of the criminals, they would be useful, if not essential in prevention of future crimes of the same ilk as well as in prosecution of guilty parties. But what about the records of innocent contacts. How can they be protected from intrusion into their private affairs even though they are without guilt or fault in the crimes that are the subject of the federal government's inquiry? How can they be sheltered from guilt by association? If you dialed that phone by accident--a wrong number--how could you convince government agents that you had no connection to the crimes or the criminals, and I don't mean someone else, I mean you. There is no way to prove your claim that nothing inculpatory happened. Your only defense would be that no one can prove the contrary, and lack of provable guilt is not the same as innocence in the eyes of most of us, and certainly not in the eyes of government agents.
I know that all of this sounds like paranoia, and I would like to know what is on that phone myself. But there may be larger issues to consider with regard to the future implications of a court order that Apple unlock that phone. Bear in mind that the government already forces telecommunications companies to give up their records of private calls and internet use, and that under the Patriot Act, they can require that those companies keep silent about the requests. Those records are stored indefinitely revealing all of your personal cell phone contacts and uses of the internet in virtual perpetuity, and while the government is required to use them only for specific purposes and after certain conditions are met, is that mandate something we can all rely on? To round out your impression of my paranoia, I have to confess my skepticism on that point.
In the final analysis, there is more to consider than the obvious. We all want to thwart terrorism, and we all want to punish those who perpetrate it. But at what cost. A police state would probably be much more secure. If everything from encrypted phones and computers to whispering were prohibited by such a state, it would be much harder to pursue conspiratorial enterprises, but do we want a police state. In other words, where do we draw the line?
Your friend,
Mike
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