Last week I read with great interest two articles in The Washington Post.
The first one appearing on Friday covering FBI director James Comey’s press conference was captioned “FBI Chief Slams Apple, Google over Encryption”.
The second was Cyrus Vance’s September 28 Op-Ed piece entitled “Can you catch me now? Good.”
Both officials voiced outrage over Apple and Google’s recent announcement, (their combined operating systems run more than 96 percent of the smartphones in use worldwide) that their new iOS 8 and Android “L” smartphones design prevents them from complying with U.S. judicial warrants ordering them to unlock user passwords. A Google spokeswoman explained that “Keys are not stored off the device so they cannot be shared with law enforcement.”
Comey and Vance are eminently qualified to weigh in on this emerging crisis of smartphone encryption.
Comey was a federal prosecutor who later served in President George W. Bush’s administration as Deputy Attorney General of the United States. President Obama appointed him to a ten year term as the FBI director in 2013: A role that straddles both law enforcement and national security.
As the son of a former U.S. secretary of state, Vance is a seasoned trial lawyer who currently serves as the influential district attorney for New York County, the largest prosecutor’s office in the nation.
There are two points at play here.
First, there is Apple and Google’s cowardly, self-serving behavior which should outrage every American.
What most likely occurred were Apple and Google board room discussions involving corporate lawyers who convinced CEOs Tim Cook and Larry Page that they can, as the saying goes, “have their cake and eat it too.”
After assurances that denying smartphone passwords to government investigators by turning over encryption to the user was perfectly legal they further convinced them that it would restore their image with privacy advocates in the wake of the Edward Snowden leaks.
Any twinge of conscience that these two billionaires may have experienced was undoubtedly dispelled with a “Don’t worry, Congress will weigh in with legislation forcing us to change our ways.” Then their public relations teams can loudly proclaim to the world “Hey, they made us do it.”
The second and more serious concern should terrify every American.
Privacy activists are claiming a major victory – but at what cost?
This is not a mere academic exercise over secret government back-door access to corporate technologies or misguided views on privacy protections and civil liberties.
It is about lawful and timely access to information that will save lives.
Today we live in an apocalyptic post 9/11 world facing a dizzying array of threats from cyber terrorism to You-Tubed beheadings of Americans beamed around the globe in seconds.
We’ve witnessed the terror of anthrax attacks, “Shoe – Bombers” and Underwear – Bombers”, mentally ill White House fence jumpers, child molesters, school shootings, human trafficking and massive fraud schemes which have already cost average American investors hundreds of billions of dollars in lost savings.
Cook and Page’s decision may even cost Americans tens of billions in tax dollars for new technological remedies which will permit lawful government access to information that Apple and Google should already be providing through the traditional court ordered subpoena process.
I believe in the adage that “what is old is new and what is new is old.” In most cases there is nothing new under the sun. Over the centuries we’ve continually seen these same problems in slightly different forms.
This crisis is no different.
It is reminiscent of the December 1939 Nardone v. U.S. Supreme Court decision (three months after the start of the Second World War – the greatest catastrophe in world history) which essentially denied the FBI use of electronically recorded evidence in criminal prosecutions.
Today, seventy-five years later, that decision looms large. Not necessarily the majority opinion, but actually the dissenting view offered by Associate Justice Charles Clark.
In a warning to his fellow justices he sent a resonating message to Americans down through the decades that “if criminals take the precaution of communicating with each other by wires or radio (today it’s a Smartphone) they obtain a new kind of partial privilege for themselves, and lessen the risk that one of their number (today it’s a search warrant) can effectively betray them to the police.”
Privacy is a cherished right for every American.
But it always comes at a cost. A cost in this case Americans should not have to pay.
I urge everyone to contact Congress today with demands to immediately legislate correctives to this truly terrible danger now facing us.