Moves by Apple Inc and Google Inc to put some smartphone data out of the reach of police and the courts are raising alarms inside US law-enforcement agencies, current and former officials say.
Of course the government is upset. Heaven forfend anything should interfere with its convenience in fishing for wrong-doing in our private correspondence. Privacy, though, is a necessary component of individual liberty and responsibility.
There is a trade-off, to be sure, between that and government’s ability to do the job of protecting us from others and from extra-national threats that we’ve hired it to do, but we must be very wary about how much of our liberty we surrender and how much of our responsibility we foist off, and we must be extremely chary of the trade-offs we make in that regard.
One Justice Department official said that if the new systems work as advertised, they will make it harder, if not impossible, to solve some cases. Another said the companies have promised customers “the equivalent of a house that can’t be searched, or a car trunk that could never be opened.”
“Harder to solve,” perhaps. “Impossible,” though, is a coarse exaggeration: our cops are better than that. Additionally, it’s long been American philosophy that it’s better that ten guilty men go free than one innocent man gets locked up. Today’s threats aren’t enough to walk away from that bastion principle of liberty.
As to that second plaint, it’s another exaggeration. The searches might get harder, but the devices are easily controllable, and get a warrant.
Andrew Weissmann, a former Federal Bureau of Investigation general counsel, called Apple’s announcement outrageous, because even a judge’s decision that there is probable cause to suspect a crime has been committed won’t get Apple to help retrieve potential evidence. Apple is “announcing to criminals, ‘use this,’ ” he said. “You could have people who are defrauded, threatened, or even at the extreme, terrorists using it.”
However. It isn’t Apple that’s being accused, or suspected, or against whom probable cause is being alleged, it’s the cell phone owner. Searching Apple’s facility because the light is better there is…faulty.
Weissman also ignores both the right of an American citizen to protect himself against a government that has shown itself increasingly intrusive, avaricious, and controlling, and the fact that a warrant must be obtained on the one hand, and on the other, once a warrant has been obtained, the government can use its own facilities to conduct the search. These facilities include both the ability to sanction the phone’s owner for not providing the password and the use of government’s IT facilities for cracking the password.
Then there’s another question. Government cannot assume our responsibilities in our place morally. If government does assume our responsibilities in our place legally, we will have lost our individual liberties and responsibilities.
Without individual liberty and responsibility not only can there be no security, there can be no hope of security.