The federal government can’t be trusted with additional surveillance powers.
Some political dilemmas come to down to: Whom should we trust more? In the case of Apple vs. the FBI, the question is: Whom should we distrust less?
Advantage: Cupertino.
As the proverb has it, Hard cases make bad law. But they sometimes make pretty good politics.
Notionally, the dispute here is about the case of Second Lieutenant Mohammed Saeed Alshamrani of the Royal Saudi Air Force, who shot eleven people, killing three, at Naval Air Station Pensacola, where he was undergoing training courtesy of the U.S. government, whose agents assure us that they are competent to vet would-be immigrants and visitors for jihadist sympathies.
The feds tend to be more effective after the fact. Twenty-one of the nearly 900 Saudi military trainees in the United States are being sent home after a federal investigation revealed them to be in possession of “derogatory” material ranging from anti-American literature to child pornography.
There will be no trial of Alshamrani, who was liberated from this vale of tears at the scene of his crime by the marksmanship of Escambia County sheriff’s deputies. But there is an ongoing investigation. Alshamrani was the sole shooter, but he did not act alone: The evening before the massacre, he entertained Saudi friends at a dinner party at which they watched videos of mass shootings, and three of them took video of the incident while it was underway. The FBI rightly wants to understand this incident in the broader context of jihadist radicalization with an eye toward preventing future atrocities.
And so the FBI would like to have a look at Alshamrani’s iPhone. But they cannot access it, and they want assistance from Apple, which has declined to give the U.S. government what it really wants: a “backdoor” to defeat the encryption in Apple products, something it has been seeking for years and pressing for in similar cases such as that of the San Bernardino terrorists. As Ben Wizner of the ACLU argues in Wired, “The Department of Justice is trying to identify the most politically advantageous case in which to press a longstanding desire, which is that companies reengineer their products to allow easy surveillance.”
In the San Bernardino case, a third party was able to provide access to the phones. The FBI’s crime lab is hard at work on Alshamrani’s two iPhones—in a truly impressive feat, they apparently have managed to get the devices into operational condition in spite of the fact that Alshamrani shot them. But they are not confident that they can access them. Apple, for its part, has provided access to a great deal of cloud data but declines to provide the means for defeating its encryption on the grounds that there is no way for them to prevent hackers and other criminals from exploiting such a backdoor.
But bad actors outside the government are not the only concern here. There are plenty of bad actors inside our government as well. From the Obama administration’s politicization of the IRS and other federal agencies with easily weaponized investigatory powers to the abuses of surveillance protocols in the investigation of the Trump campaign (“antithetical to the heightened duty of candor” in the sterile language of Rosemary Collyer, the presiding judge at the FISA court), the federal government has shown itself incapable of deploying its awesome powers in an honest and politically neutral fashion.
The ethical lapses of the federal government must be considered in the context of its general incompetence in the matter of deploying the powers it already has to prevent terrorist attacks such as the one in Pensacola. Return your minds for a moment to the fact that at least 21 of the Saudi military personnel brought here for training were in possession of anti-American propaganda, which should have raised counterterrorism concerns, and child pornography, which is a regular old workaday felony.
Performing background checks on military personnel, who are under certain obligations that supersede ordinary privacy expectations, is a relatively easy task. And we are not talking here about members of the Norwegian military but members of the military of Saudi Arabia, the government of which is not famous for its interest in the privacy of its subjects or their civil liberties.
No humility about its shortcomings stopped the U.S. government from providing these men training in the killing arts at the expense of the U.S. taxpayer. Nor did it stop the U.S. government from importing a terrorist who carried out a deadly attack on U.S. soil.
Mature judgment requires us to balance the likelihood that additional powers will be abused against the likelihood that some good will come of them, and in this calculation, Washington is found wanting.
Apple is right to look after the privacy interests of its customers, and to assist law enforcement where doing so is not detrimental to those interests. And the U.S. government’s law-enforcement and intelligence operatives are right to do what they can to learn what can be learned from the communications of terrorists such as Mohammed Saeed Alshamrani. But they are the ones who have to do their job—it is not desirable that Apple should be deputized to do it for them, or that Apple should give them a master key to Americans’ private communications—because the U.S. government already has shown on many occasions that it simply cannot be trusted with such power.
It is worth remembering that Senator Barack Obama was a civil libertarian who worried that the PATRIOT Act would undermine the privacy of American citizens, and that President Obama, only a few blinks of the eye later, decided that the so-called war on terror invested him with the unilateral authority to order the assassination of American citizens without so much as a legislative by-your-leave.
Political power is always growing and generally metastatic, and the case of Mohammed Saeed Alshamrani is not only—or even mainly—about Mohammed Saeed Alshamrani.