December 11, 2016

The encryption court order to Apple is conscription

Tim_Cook_WWDC_2012Donald Trump and Ted Cruz have weighed in on the controversy over a government court order requiring Apple, Inc. to develop software enabling the FBI to hack into an iPhone recovered in the home of the San Bernardino shooters. The iPhone’s security system is encrypted and automatically erases data after a certain number of unsuccessful attempts to enter a correct password to unlock the phone’s home screen.

CEO Tim Cook has issued an open letter explaining why he is resisting the order.

Cruz said the government “had the better argument” and its request was “consistent with the Fourth Amendment” because the phone was obtained pursuant to a legitimate search warrant that was specific to the place to be searched and the items to be seized.

Trump based his support of the government on the same foundation he based most of his positions: nothing.

No one is disputing the government has a right to the phone. But that doesn’t mean it has the power to force Apple to create a new product to help them.

Cook’s letter and much of the commentary by civil liberties defenders have concentrated on the potential security risk to the millions of other iPhone users, both from government intelligence agents and criminals (but I repeat myself). While these concerns are serious and relevant, they seem to concede the answer to several previous questions:

Can the government issue a writ compelling a private company to commit significant time, labor and other company resources to assist in a criminal investigation? Why does this not violate the 13th Amendment? If the government can compel Apple to work for it when it is unable to do its job alone, who is immune from being conscripted in the name of national security?

The government claims access to the phone is crucial to gather evidence, including the possible involvement of others, including overseas terrorists, who may have directed or otherwise been involved in the attack. But given what the government already knows about this crime and its perpetrators, that seems unlikely.

It’s more likely this is just the excuse the government has been looking for to pick a legal fight over encryption in general. That there is any information anywhere that is beyond its reach is intolerable to the intelligence and law enforcement communities. They prefer the populace figuratively and (sometimes) literally naked before them.

Contrary to the mantra you’ll hear repeated ad nauseum over the course of this battle, there is no question of “balancing liberty and security” here. The government has a perfect record of failure in never preventing a single terrorist attack it hadn’t fabricated itself to entrap would-be terrorists, despite access to metadata on every phone call and e-mail made to or from anyone in this country. Allowing them even greater access into the personal information of millions of innocent people isn’t going to help them improve.

The government isn’t supposed to be trying to prevent anything. The Fourth and Fifth Amendments assume the government can only act after a crime has been committed. This does not leave the citizenry exposed like sitting ducks. The Second Amendment assumes individuals can and will defend themselves.

It’s time to stop attacking the Bill of Rights to double down on what doesn’t work. We’ll all be safer and freer if we make the government more strictly obey all ten of those amendments.

 

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

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