Whose Phone Is It, Anyway?


Some people think — and I wonder about this myself — that it would be my duty as a libertarian to side with Apple in its contest with the United States government about the question of whether the company may justly be compelled to assist the government in opening the cellphone of the (dead) San Bernardino terrorist Syed Farook. The government is looking for terrorist associates of Farook who may have left traces in the guts of his phone.

The legal issues and history have been ably summarized by Gabriel Malor, on the website of the libertarian-conservative Federalist Society. He concludes for the government. But what is chiefly of interest to libertarians is the question of whether the government has a moral right to invade the privacy of Farook’s phone, and by possible implication millions of other phones, such as the one sitting beside me as I write this Reflection.

The government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state.

For me, there are real claims to privacy, and there are spurious ones. Much neglected in the discussion of Mr. Farook’s phone is an issue mentioned by Sen. Susan Collins (R-ME): “The phone was not even owned by the terrorists; it was owned by the county for whom he worked, and the county has given the FBI permission to search the contents of the phone.” Apple concurs on the issue of the phone’s ownership.

So while being anxious about the government’s creating a precedent by forcing a company to assist it in extracting information from a cellphone, perhaps we should also be laughing at the joke: the government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state; the government gave him a cellphone to use in its service; and the government lost track of the contents of his cellphone, perhaps with future hideous results.

Only one thing is lacking in this picture: the government’s usual claim that the data it “owns” must be retained as a deep secret in the bowels of its HR departments, so that the privacy of its employees can be maintained in primordial sanctity. Today it is a private organization that is making the meretricious claim to privacy.

Libertarian anarchists will disagree, but here’s the story as it appears to me. If there’s a fire in my neighborhood, the government has a legitimate power to make me open a gate so the fire engines can get through. It also has a legitimate power to enforce a warrant to enter someone’s property, looking for the source of the neighborhood’s fires. In this case, the gate is Apple’s, and the property is — the government’s!

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I have a quibble with your gate analogy. The government didn't merely ask Apple to open the gate, it asked Apple to give the government a key to the gate. The government has since backpedaled; i.e., some on the government's side now claim they are content to let the software to bypass the encryption stay with Apple, but the original demand, as I understand it, was for Apple to give the software to the government.

There is also a matter of exigency in a demand to open a gate to access an on-going fire that isn't at play here. The government wants past the gate, but without exigency, Apple should be permitted the time to appeal the court order.

I prefer John McAfee's solution; i.e., give him and his hackers the phone. If the goal is to get this particular data set, everyone would be satisfied. Apple isn't forced to compromise its product and reputation, McAfee's reputation improves, Apple can gain some additional insight into security vulnerabilities, and the government gets its data.

I suspect, however, that this solution won't please the government. It's looking for a precedent, not just the data.

Scott Robinson

Dear Stephen,

I have thought a lot about this subject recently. First, I know that people say that the word, "privacy", is nowhere in the US Constitution. I disagree with this. The Fifth amendment to the Constitution says that a person can not be forced to reveal incriminating evidence. Even though you vowed to tell the whole truth in court, you can abstain from telling self-incriminating truth and not be guilty of perjury or non-compliance. I extend this right to withhold information to be analogous to a right of privacy that extends to your personal phone.

The problem is, as you mentioned, the phone is not the phone of Syed Farook. Being the phone of the community (local area) government, it is the community government who is responsible to comply with the search warrant. They should also be held guilty as accomplishes to the crime of murder of 14 people. Fat chance of that happening. However, as I said earlier, the community government can withhold the phone's info as their right to privacy. You could argue that government doesn't have a Fifth Amendment right to privacy, but then you better be citizen's arresting Lois Lerner, and forcing her to disclose the information that she withheld when questioned about the IRS discrimination against Tea-party affiliated applicants for tax exemption.

The biggest problem is that the phone was made by Apple and the court is trying to force Apple to get them the info. Holding the manufacturer liable for crimes committed with their products would be like prosecuting Coors brewing for vehicular manslaughter when a drunk driver kills a person while driving drunk on Coors beer. Coors is no more guilty of drunk driving and vehicular manslaughter than Apple is guilty of invoking Jihad and murdering 14 people.

Agreeing with Apple,

Stephen Cox

Dear Scott,

I always like your responses, even when I disagree with them. Let’s see what I can do with this one. Here are my propositions.

The Fourth Amendment provides for reasonable searches and seizures, executed by judicial warrant. There’s no question that under the Constitution the government can get a warrant and seize your phone, just as it can seize your “papers and effects,” as the Fourth amendment says. This is not the same as requiring you to testify against yourself, as in the Fifth Amendment. And in the case we’re debating, the governmental entity that owns the phone has agreed to the search of the phone.

In the legal context, Ms. Lerner took the Fifth to protect herself, not her government agency.

Government agencies cannot take the Fifth. They are guaranteed no privacy protection by anything in the constitution. A judge or a superior public official can simply compel them to produce their papers or their phones. It can also tell them to open a phone, and do it now.

The government is not holding Apple liable for any crime or damages. The only special thing about this case is, as you say, the fact that the government wants to compel Apple to do something; i.e., take the phone and open it. Paraphrasing Patrick Henry, I say, “If this be slavery, make the most of it.” It’s not a Fifth Amendment case, because the government is not trying to seize anything that belongs to Apple, even the code that is necessary to open the phone. It just wants Apple to open it. This is exactly analogous to the application of all those “police powers” that existed before the Constitution and in the early republic, and that no one in the constitutional convention ever questioned. Governments required citizens to work on the roads or pay a fine (almost everyone paid the fine); they required, and still do require, citizens to clean or maintain sidewalks in front of their property; they required, and still do require, that citizens cooperate with fire marshals by unlocking gates for fire engines to pass.

Probably none of this is agreeable to the minority of libertarians who are anarchists, and I respect their views. But there’s nothing strange about it from a constitutional perspective.

Thanks for letting me get all this off my chest. Tell me where I’m wrong.

With every good wish, as always,

Scott Robinson

Dear Stephen,

Hmmm. You do have a point with the Fourth Amendment. This is something that I struggled with. I know that if the someone goes to court and presents evidence that reasonably supports the likelihood that I have committed a crime, they receive a warrant to search my properties. When police come to search and seize any evidence that is in my house, they issue the warrant to me and then I must let them search all parts of my house. If I deem that there is a room that they can't enter, I have the choice of either unlocking the room for them, or they can break and enter on their own.
This is where encryption becomes relevant. If they see a diary or journal that I have, I must unlock it for them to look inside. This is a point relevant to the phone issue. The law enforcement investigators must be allowed access to the contents of the phone, a community government responsibility, not Apple's. Now after the investigators see the contents, they may not be able understand what they say because they are written in Scott Robinsonnese. Now's when my Fifth Amendment argument is relevant. I can be called into court and given the order to translate the contents. I can just sit there and refuse to say anything in response. I have the right to remain silent and this includes after being ordered to translate the contents of my phone or journal so that the investigators can understand what I said. Interestingly, if I thought that I could just "translate" the contents into something that wasn't actually a translation of what I said, then I could be convicted of perjury. I contend that even if I have to follow the directions of translating the encrypted contents, I don't have to say, verbally or in writing, what I translated the contents into.
As far as my previous implication that Apple was being held liable, that was me stretching the definition. You have a good point about how just by the fact that I live within city borders, I have to pay for schooling, police salaries, and firefighter salaries. That's where property laws become the issue. But speaking of property, this reminds me of the issue that was being discussed a while back, intellectual property. This term is really the improper combination of two separate terms. Intellectual is not property. As the common phrase goes, "It's in your head". This I would say is where the Fifth Amendment applies and I am free to withhold it. When you take the intellectual and record it, pen on paper or bits on digital storage, the Fourth Amendment applies and if the investigators have a warrant, I cannot withhold it. Therefore, I see the importance of recording your intellect using the tools of encryption. This isn't just for protecting yourself from the law, it's also relevant for business, entertainment and invention.

I do think that the answer to this article's title is community government. Therefore, community government, being the legal owner of the phone, could give Apple permission to access the phone's content. I know that Apple may argue that it can't get this phone's contents without basically blanketing access to everybody's phone. This does make it interesting when I consider email, iTunes, and Amazon accounts which allow people who've forgotten their passwords to get new passwords. I would think that a similar thing could be done by Apple to send a new password to the community government's email allowing them to comply with the search warrant.


Stephen Cox

Dear Scott, and other kind responders,

Thanks for your comments. As I understand it, the government wants Apple to "open" the phone. It's not asking for codes or whatever to take and use itself. If the government takes a bank to court and gets an order to provide the key to open someone's safe deposit box, which is thought to contain evidence, this is not the same as demanding the master key so it can use it itself, whenever it wants to.

About the fifth amendment. This is a guarantee against self-incrimination. If has nothing to do with putting someone on the stand to testify about something that is not going to incriminate him. Apple executives are not being called on to incriminate themselves.

If someone knows where there are documents about who perpetrated a crime, and knows how to open the box that contains the documents, he can be called into court and forced to testify, on pain of being sent to jail for contempt of court.

The non-legal but still important issue is that the phone may contain information that reveals a terrorist network that is planning to kill other people. This is not a reason to ignore real constitutional restraints, but it should not be forgotten.

The best to you!

Fred Mora

Scott is right. There are a couple of other points to consider as well:

First, what the Feds are asking is not a simple decryption of this one phone. They want Apple to create the means to decrypt the contents of all such phones. This might be incidental to their demands, but Apple doesn't have a choice: To decrypt the phone, the firm needs to create a new version of its iOS that removes certain security features. Note that Apple needs to electronically sign the new OS file in order for it to be installable on an iPhone, and they are the only one able to do so since they own the e-signature key.

Once the unsecure iOS has been created, the Feds will be able to ask Apple to use it for decrypting other phones. Heck, they might even get this iOS file and distribute it to many agencies. One look at the history of, say, asset forfeiture and their abuse is enough to convince anyone that the Feds will misuse this new capability and start decrypting random people's phones at their whim. And of course, the Office of Personnel Management scandal shows that the Feds cannot keep a file secret even if their colleagues' lives literally depend on it, so the unsecure iOS image will soon be leaked and circulated among phone thieves. Hey, steal a phone, then steal the owner's banking ID and personal details!

Second, Apple's protests are largely for show. The government has a court order to constrain Apple, so short of moving all their assets and employees out of the country, the company has very few options but to ultimately comply. Apple's executives are by and large statists, so this government order is what the French call sweet violence: It forces them to do something they secretly agree with anyway.

If you don't know about the OPM leak, read up, it's a doozie: http://fedscoop.com/why-opie-leak-is-so-devastating-to-the-u-s
TL;DR: The security clearance file of every past and present US employee is now in Chinese hands. Clearly, the Feds can be trusted with our confidential info!

Fred Mangels

The other Fred wrote: "They want Apple to create the means to decrypt the contents of all such phones ".

That kinda jives with what little I've read of this. They want it set up so they have access to all phones, eventually.

Kinda like the aforementioned gate, maybe? It's akin to saying you can't make and install a gate without first giving the government the key to allow them permanent access?

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