Tuesday was a big day in the Apple versus FBI case, with both parties testifying before the U.S. House of Representatives Judiciary Committee. Both sides made their opening statements public and now face questioning by committee members.
I've reviewed the opening statements by Apple and the FBI. The Apple statement sticks closely to the argument that the company has been making in the press. Apple maintains that creating a tool such as that demanded by the FBI will hurt every user of Apple's products and, by extension, civilization as a whole. The tool in question would unlock an iPhone that possibly was used in connection with the Dec. 2 terrorist attack in San Bernardino.
The government's case seems to be based on emotional appeals and the need for law enforcement to be able to investigate crimes more easily. FBI Director James Comey testified that he appreciates and values encryption for use by individuals who want to keep secrets but he finds it troubling that, for the first time in history, individuals will be able to hide all of their secrets from lawful court order.
The FBI states explicitly that it wants Apple and other tech companies to create systems that law enforcement can access under legal court order - essentially a backdoor that the tech companies can open when ordered to do so by the courts.
New York District Attorney Cyrus Vance Jr., who testified in support of the FBI, said in his opening statement, "I believe the high burden imposed by the Fourth Amendment - not warrant-proof encryption - is our best protection from abuse."
This statement ignores recent abuses and avoidance of the protections of the warrant system, and it ignores the billions of people in this world who do not enjoy the protections of the Fourth Amendment.
Vance's statement seems to be based on a static view of human nature. Such a view assumes that humans don't change their behavior when circumstances change. I've observed otherwise: If circumstances change, people will change their behavior to their own advantage. I believe that if companies are prevented from legally producing warrant-proof encryption in the United States, the users who desire warrant-proof encryption will find elsewhere the tools to be warrant-proof. We already see this at work with gun-control legislation. Although convicted felons are legally prohibited from purchasing firearms in this country, they still find a way to acquire them. Similarly, criminals who can't legally hide their secrets will find another way to do so.
Another troubling aspect of the government's position is that the FBI and its supporters on this issue are, in effect, asking us to trust all governments. As I noted in my earlier article on this topic, if the door is open to the U.S. government, it surely will be open to all other governments. And once the door is open to the government - whether in the United States, China, Russia or Iran - it can be misused by the government.
The question comes down to whether any law-enforcement agency should have access to our secrets when the agency believes it has justification for that access, or whether individuals should have the ability to hide their secrets from the government.
When you shift the argument to a global scope, the ramifications of opening access to the government are far scarier than the ramifications of seeing some crimes potentially go unsolved.