THE RUNNING debate over data privacy between Apple and law enforcement often seems irreconcilable.
Tech companies are creating devices that allow people to routinely evade wholly lawful warrants for possible evidence, potentially enabling all sorts of crime, those on the law enforcement side warn. The country must look for ways to allow the FBI and others to access protected data for legitimate law enforcement purposes while minimizing the collateral risks to everyone else’s information, they say.
The country cannot both have strong encryption and offer law enforcement routine access to encrypted information, many experts and civil libertarians shoot back. The digital world is filled with malicious actors looking for any opportunity to steal valuable information. Instead of creating tools to breach secured data and starting down a slippery slope in which everyone’s critical information is at risk, the nation must err on the side of data protection.
These two sides collided spectacularly last week over San Bernardino, Calif., terrorist Syed Rizwan Farook’s iPhone 5C, which Apple admits it could help the government break into — but will not, in part because the precedent could define what law enforcement expects from tech companies. More than anything else, the collision has underlined the need for a new policy that would set clear rules for tech firms and law enforcement. This is not a question that should be left to magistrate judges ruling in the heat of a case.
Luckily, since last week, both sides have made subtle moves toward agreement on one thing: There ought to be a more rational, orderly — and potentially productive — public debate on these matters. “I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need,” FBI Director James B. Comey wrote in a note on the Lawfare blog. For its part, Apple recommended “a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms. Apple would gladly participate in such an effort.”
Rep. Michael McCaul (R-Tex.) and Sen. Mark R. Warner (D-Va.) are drafting a bill they intend to introduce next week that would establish “a national commission on security and technology challenges in the digital age” composed of “the brightest minds from the technology sector, the legal world, computer science and cryptography, academia, civil liberties and privacy advocates, law enforcement and intelligence.” It would be charged with “finding creative ways to protect our security — both public and private.”
Given the stakes, proposing a commission may seem like an underwhelming response, and both sides may prove willing to talk but not budge. But the alternative is courts drawing the lines, which may be worse for Apple and other tech firms than at least trying to find some way to thread the data security needle. If there were another major terrorist attack in the United States, the debate could quickly turn much less favorable to Silicon Valley.