I am a lifelong civil libertarian. I think Edward Snowden is a national hero who should get the Medal of Freedom. As a reporter, I covered government spying and abuses of surveillance by the FBI and other agencies. I believe privacy and the rule of law are at the heart of any sensible civil society.
But for those very reasons, I am, heretically, deeply alarmed by Apple’s refusal to cooperate with federal investigators seeking to decrypt the San Bernardino shooter’s iPhone. Far from serving civil liberties and the public interest, Apple’s stance undermines corporate accountability and civil rights, and could damage a wide range of progressive reform movements, from environmentalism to #BlackLivesMatter. In a real way, Apple’s libertarian grandstanding is as corrosive to civic values and American democracy as Donald Trump.
Look at it this way. I am writing—on a MacBook—in my university office at a desk with three locked drawers. In those three drawers reside all sorts of confidential files. Personnel files of my academic center’s staff. Communications from and about students. Finance reports. Not to mention research files on stories, interview notes, manuscripts. All securely locked—in some cases, as a legal requirement.
But suppose I get caught engaging in a criminal conspiracy. Maybe I’m scheming with some gun-obsessed racist militia to shoot up the campus. Maybe I’m being paid by a mobbed-up trash hauler to steer a university contract. Regardless, the first thing investigators will do when they catch a hint of my crime will be to secure a warrant from a judge, walk into my office and drill open my locked filing cabinet. And not one person reading these words would argue that the government is invading my privacy. Reasonable searches and seizures—approved by judges, transparently spelled out in warrants, subject to challenge by lawyers—are one of the fundamental elements of any democratic justice system.
But what about my smartphone, the most efficient filing cabinet ever devised? Under Apple’s reasoning, all I need to do is keep every incriminating communication and document on my smartphone’s encrypted chip, and my records will be forever immune from inquiry. In many cases, the simple existence of crucial communications or documents will remain unknown and unknowable. In others, investigators may suspect there’s a relevant document, and a judge may demand that I unlock my own phone. But if I’m any kind of a conspirator, I’d certainly risk contempt of court for refusing to comply rather than serve decades in prison for the crime I actually committed, but which could only be proved with the documents and footprints stored on my iPhone.
Now imagine that instead of being a lowly journalist and university functionary, I am a Chicago Police Department officer—the commander, let’s say, of that secret squad that routinely tortured suspects in a West Side warehouse until it was outed by investigative reporters last year. With truly unbreakable encryption, all I need to do is keep all our squad notes and communications on cellphones—a silicon wall of silence. Without that evidence, it would be so much harder to make civil-rights charges stick.