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Locking Out The Law

close, angled view of an iPhone 6 Plus display
photo by William Hook

A famous philosophical paradox poses the question: Can an all-powerful being create a stone so heavy the being can’t lift it?

That question remains one without a definitive answer. But with the iPhone 6, Apple has tried to create a security system so strong that the company itself cannot breach it.

The new phone will use an algorithm to encrypt emails, photos and contacts keyed to a unique user code, which Apple will not possess. If a court orders Apple to turn over the contents of an iPhone 6 to an intelligence agency or law enforcement, the company will turn over gibberish that will need to either be forcefully decoded or accessed with the phone owner’s cooperation, The New York Times reported.

Government response was swift. The administration promptly trotted out FBI Director James Comey to denounce Apple’s new encryption system, as well as planned stronger security in Google’s Android software, as a life-and-death threat to law enforcement, rather than an appropriate response to government overreach.

The companies’ actions, and the intelligence state’s response, were predictable. In fact, they were predicted by various onlookers, including me. In August 2013, I discussed the complicated balancing act of privacy and security that would be required in a situation in which law enforcement wanted immediate access to data, without a warrant, to try to rescue an abducted child. Comey used precisely the same example when he criticized the new phone’s security. Inadvertently, he demonstrated that the argument that government is sucking up data solely for national security reasons is bogus, and has been from the start.

Now that the government’s data gathering has created a global scandal involving heads of government in Germany and Brazil among others - and now that the costs to the American tech industry are becoming increasingly clear - we are seeing exactly the response that we expected to see from tech companies and their customers.

Comey’s argument has surface appeal. But underneath, it makes little sense in light of how the government conducts its business. He essentially says that if someone builds a house or installs new locks, that builder or locksmith should always keep a key in case law enforcement someday needs to exercise a search warrant and break into the house without alerting the owner. Oh, and we should also install doors flimsy enough that police can break in if they want to.

His comments betray a fundamental lack of understanding, disingenuous or otherwise, of why any smartphone user might want privacy unless they were conducting illicit or illegal activity. At a press briefing, Comey told reporters he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.”

The assumption that people who aren’t doing anything wrong have nothing to hide is part of what got the intelligence community into a position where technology companies not only refuse to leave open a back door, but also make sure the front door is locked tight. In many ways, the government itself has caused the problem to which companies are now responding.

The government is outraged. Where are the simple, breakaway doors they used to expect?

That’s not how the system is supposed to work. If the police want to conduct a search, they should get a warrant. If the party being searched thinks the warrant is unjustified or overbroad, that party should have an opportunity to challenge it.

But when police want information from Facebook, for example, they insist that Facebook not tell its users that their information is being seized. They then argue that Facebook itself has no standing to challenge the warrant demanding information. The result is that nobody has standing or opportunity to challenge law enforcement or intelligence agencies, which is exactly how the agencies like it. Facebook is pushing back, but it remains to be seen whether the courts will curb this practice. Of course, the inconvenient thing about giving the subject of a warrant the chance to challenge it is that sometimes the challenge might succeed.

Even the latest iPhones will still reveal plenty about their owners, such as location data and calls that are placed or received from cell towers. But they won’t give up easily their digital secrets without the owners’ collaboration. Builders, whether of homes or of phones, are under no obligation to keep a spare set of keys for the government’s use. The government’s own insistence on such keys just feeds the demand for tighter data security, the better to protect everyone’s privacy.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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