The showdown between Apple and the FBI is not, as many now claim, a conflict between privacy and security. It is a conflict about legitimacy.
America’s national security agencies insist on wielding unaccountable power coupled with “trust us, we’re the good guys”, but the majority of users have no such trust. Terrorism is real, and surveillance can sometimes help prevent it, but the only path to sustainable accommodation between technologies of secrecy and adequately informed policing is through a root-and-branch reform of the checks and balances in the national security system.
The most important principle that the Obama administration and Congress need to heed in this conflict is: “Physician, heal thyself.”
The FBI, to recap, is demanding that Apple develop software that would allow it to access the secure data on the work phone of one of the two perpetrators of the San Bernardino attack.
Apple has refused to do so, arguing that in order to build the ability to access this phone, it would effectively be creating a backdoor into all phones.
The debate is being publicly framed on both sides as a deep conflict between security and freedom; between the civil rights of users to maintain their privacy, and the legitimate needs of law enforcement and national security. Yet this is the wrong way to think about it.
The fundamental problem is the breakdown of trust in institutions and organizations. In particular, the loss of confidence in oversight of the American national security establishment.
It is important to remember that Apple’s initial decision to redesign its products so that even Apple cannot get at a user’s data was in direct response to the Snowden revelations. We learned from Snowden that the US national security system spent the years after 9/11 eviscerating the system of delegated oversight that had governed national security surveillance after Watergate and other whistleblower revelations exposed pervasive intelligence abuses in the 1960s and 70s.
Apple’s design of an operating system impervious even to its own efforts to crack it was a response to a global loss of trust in the institutions of surveillance oversight. It embodied an ethic that said: “You don’t have to trust us; you don’t have to trust the democratic oversight processes of our government. You simply have to have confidence in our math.”
This approach builds security in a fundamentally untrustworthy world.
Many people I know and admire are troubled by the present impasse. After all, what if you really do need information from a terrorist about to act, or a kidnapper holding a child hostage? These are real and legitimate concerns, but we will not solve them by looking in the wrong places. The FBI’s reliance on the All Writs Act from 1789 says: “I am the government and you MUST do as you are told!” How legitimate or illegitimate what the government does is irrelevant, so this logic goes, to the citizen’s duty to obey a legally issued order.
The problem with the FBI’s approach is that it betrays exactly the mentality that got us into the mess we are in. Without commitment by the federal government to be transparent and accountable under institutions that function effectively, users will escape to technology. If Apple is forced to cave, users will go elsewhere. American firms do not have a monopoly on math.
In the tumultuous days after the Snowden revelations there were various committees and taskforces created to propose reforms. Even a review group made of top former White House and national security insiders proposed extensive structural reforms to how surveillance operated and how it was overseen. Neither the administration nor Congress meaningfully implemented any of these reforms.