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!