It’s a sad state of affairs when Americans have to rely on private companies to protect our constitutional rights against the government, but apparently that’s where we are. That’s why I commend Tim Cook of Apple for his strong statement opposing the FBI’s overly broad demand for the creation of a tool that would allow them to break encryption on any iPhone in the world.
Americans have the right to have our digital papers and digital houses as secure as our analog papers and houses, as any reasonable interpretation of the Fourth Amendment would demand. That’s why at the same time we are asking the federal government to enhance digital privacy through updating the Electronic Communications Privacy Act (ECPA), we also oppose broad attempts to defeat encryption on mobile devices.
Federal law enforcement has long sought to deny Americans access to robust encryption, going all the way back to the origins of the Internet. Had the feds succeeded, we would not today have the secure ecommerce economy that we enjoy, because all of that commerce depends on strong encryption.
But today the FBI is using a sympathetic case and an expansive interpretation of a law from 1789 to demand a backdoor into the iPhones of everyone around the world, which includes political leaders from other nations who use iPhones. And don’t think totalitarian governments around the world don’t share the FBI’s enthusiasm for the ability to defeat encryption.
The fact that we crave safety and security means there will always be a tendency to give more power to those whose job it is to protect us. The problem, of course, is that these agencies, and the people who staff them, are imperfect, and subject to the same temptations and incentives as anyone else. That’s why the Constitution places limits on government in its law enforcement efforts just as it does upon government’s other duties and functions.
Thomas Jefferson once said, “I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.” In the American system, we purposely tilt the playing field toward liberty rather than toward government power. It’s a feature, not a bug.
The law enforcement function is vital to a safe and secure society, but keeping law enforcement within constitutional limits is vital to a free society. We can have both. We encourage the FBI to work constructively with Apple in their specific investigation in the San Bernardino domestic terrorism case without using the case as an excuse to seek overly broad powers it has already been denied many times in the past.