Congress must act soon to stop Apple

If Congress does not act soon to rule that the CALEA act applies to extremely strong encryption inserted into Apple phones, every terrorist, drug dealer, and human trafficker with half a brain will get one. They may have waited a bit to find out if these phones are really as impenetrable as both the FBI and Apple claim, but one must assume they are increasingly convinced. Thank you notes from spies to Tim Cook are overdue; they no longer need to sneak out at night and leave their messages in drop boxes, and for others to risk detection when they pick up these messages. Spies can use instead the new Apple phones without getting off their duff. A reporter showed me his Apple phone proudly declaring that now he can get with impunity all the leaked documents people in the government wish to send him.

{mosads}Apple counts on gaining time in order to be able to sell millions of these phones by first appealing the lower court order to decrypt the phone used by the San Bernardino terrorist. It already announced that if it fails here, it will appeal to the Supreme Court. This is likely to take many months. Apple also stated that it would rather have Congress deal with the matter than the court, realizing that Congress is a deliberative body, unlikely to act swiftly at any time, let alone in an election year. The only way –if one agrees that if we wait much longer, so many bad people will have these phones, stopping their production have little effect—is to move with all deliberate speed to settle these issues at hand.

Apple argues that if it introduced a back door into its phones, the privacy of many millions people around the world will be violated because criminals will find and enter via the back door. Actually the Constitution stops at the water’s edge (as far as privacy rights are concerned) and it is crucial for our safety to be able to read what ISIS is planning next, and quite a few others.

As far as Americans are concerned, the Constitution explicitly states that only unreasonable searches are banned. In scores of cases the courts ruled that if the danger to the public is high and the violation of privacy is limited, that searches are reasonable, i.e. in compliance with the Constitution. Train engineers can be tested to detect drug abuse even when there is no “individualized suspicion”; millions of Americans are “searched” by TSA agents every day; cars can be stopped to prevent drunk driving and so on.

Apple claims that to build a program to unlock its phones is a costly “unfunded mandate”—turns out it costs about the same as the amount one engineer earns in one year. Apple claims that making it form a program to unlock phones is a violation of its First Amendment rights because it requires it to speak in a given voice. If such a requirement is illegal, so would be all warning signs on medications, cigarettes, and much else.       

Apple makes other arguments, all easy to set aside—as long as we recognize that high-tech CEOs cannot be the ultimate judges of what is essential for US homeland security and public safety. Congress and the courts are. And as long as we recall that the right to privacy (and to make profits) needs to be balanced with concerns for the public interest. Enabling terrorists and criminals to be able to communicate without the government being able under any circumstances to listen in, is tilting too far from what our basic security requires. Much too far.

Etzioni is a professor at The George Washington University and the author of Privacy in a Cyber Age. He served as a senior adviser to the White House and taught at Harvard, Columbia, and Berkeley.