The party of small government? Apparently not when it comes to technology issues.
The topic of the Apple vs FBI situation came up during the Republican Presidential Debate on CNN last night. To my dismay, all the candidates of the supposed party of small government took a hardline, big government stance against Apple. I guess I shouldn’t be too surprised, as I expected this position from a couple of the candidates, but it did confirm my fears on how the situation is being misperceived amongst many in the public. I would have loved to see at least one candidate take a principled stand against the FBI (et tu, Ben Carson?), which is one reason I really wish Rand Paul had stayed in the race to provide a contrast when the other Republicans stray into the weeds on certain issues. That being said, let’s do a quick run-down on each candidate’s comments:
Donald Trump: The frontrunner was not actually asked about this situation during this debate, but based on his earlier comments, we know Donald Trump’s position (and I’m paraphrasing): Terrorist BAD … FBI GOOD … Apple make me ANGRY! But seriously, his position is based on a simple misunderstanding of the situation, which it seems most of the candidates shared as I’ll explain below.
Marco Rubio: As he usually is, Marco Rubio seemed very rehearsed in his response to the question. He delivered the best zinger of the night saying that “Apple doesn’t want to do it, because they think it hurts their brand. Well let me tell you, their brand is not superior to the national security of the United States of America.” He correctly pointed out that the FBI’s request was not an encryption backdoor but just a way to crack the password on one phone. So it was clear that he had been well coached on the topic, but unfortunately those who were advising him focused on the FBI’s side of the argument, ignoring the positions Apple has brought up. Rubio however was clear that he did not support encryption backdoors in general, so perhaps his team hasn’t had a chance to review Apple’s court filing that was released earlier in the day. Perhaps he will change his position upon further view.
Ted Cruz: For being such a strict Constitutionalist and generally a principled defender of individual liberties, I was most dismayed that Cruz didn’t take a more nuanced stance on the situation. He basically thought that Apple should comply with a legal court order, clearly missing the point that the the legality of the court order is in question – which is truly the heart of the issue. He at least did clarify that he does not support government enforcing encryption backdoors, but he apparently is not aware of the full implications of the FBI’s orders on our rights and freedoms. I’m hoping that once he gets a chance to read Apple’s court filing, he will modify his stance.
Ben Carson: Ben Carson has been a fairly principled small-government advocate and one of the least hardline when it comes to national security issues. So it was odd to hear him say that he believed Apple should comply with the FBI order. However, I also got the impression that Carson was simply not up to speed on the issue. Which again, if one only listens to the soundbites coming from the FBI side of things, Apple just needs to “click a few buttons” and the FBI will have their data. But it is far more complicated than that. Carson was basically just repeating what the other candidates said which was that they believed Apple should comply with a legal court order. Well, sure they should, but this court order is possibly illegal. I’m sure Rand Paul would have pointed that out.
John Kasich: I think John Kasich is just trying to emulate Donald Trump the longer the campaign drags on. Kasich did not actually express an opinion whether or not Apple should comply with the FBI order, but instead just stuck out his chest and admonished President Obama for not forcing Apple and the FBI to come up with a solution. He said that if he were president, he would lock the two sides into a room and not let them out until they reached an agreement. Well, Mr. Kasich, that may work for someone who is an employee of the government under your charge, but Tim Cook is a private citizen, Apple is a private company, and locking up Cook or any Apple employee would basically be kidnapping or unlawful detention. So Kasich showed he doesn’t understand the complexity of the situation either and in some ways, his answer was the worst of any of the candidates. Not all issues can be solved through political compromise, especially when core issues of liberty and privacy are at stake. Going along to get along might make good politics, but it doesn’t protect our freedoms very well.
Let Me Spell it Out for the Candidates
The bottom line is that it was clear none of the candidates understood the technical underpinnings of this situation. This is not a simple warrant to search for some data. If it were that easy, Apple would have already complied, as they have in the past and already have cooperated so far in this situation. There are four main points to consider in Apple’s defense. They are not hard, so even a politician should have no trouble comprehending them:
First, the action the FBI is requesting is not as simple as pushing a few buttons. It will be a complex technical undertaking for Apple to be able to comply with the FBI’s request, taking hundreds or thousands of man-hours to complete, and potentially a significant amount more to maintain after the fact. As I mentioned already, Apple has already complied with all lawful requests from the FBI and has even turned over data in their possession from previous iCloud backups of the iPhone in question. Clearly it’s not like Apple isn’t complying with all reasonable and legal requests. Additionally, had the FBI not unilaterally made the decision to change the iCloud password prior to consulting with Apple, they would have been able to make the iPhone initiate a new backup and avoid this situation altogether.
Second, the veritable Pandora’s box that would be opened by complying with the FBI order would be tremendously burdensome to not only Apple but potentially much of the technology industry. While the FBI claims this would be a one-time request on a single phone, the reality is that many law enforcement departments are already lining up to make the same request as the FBI – and the FBI themselves already have at least four other cases in waiting! Besides just being a significant and costly burden for Apple or any other company with similar products, the creation and maintenance of an insider hacking tool has serious implications on the security of American technology products. If companies can be forced to hack their own products, would they be able to create truly secure devices anymore? The significant burden for companies to create, maintain, and keep secure these self-inflicted hacking tools would be unlike any ever endured before. Companies are used to protecting trade secrets from other companies, but can they honestly be asked to protect hacking tools that criminals and foreign espionage would no doubt target?
Third, the implications of the FBI’s order is that they can literally enforce any request of any kind on any company or individual as long as they claim it is “necessary” for the purposes of law enforcement. There would be virtually nothing that could not be requested, including forcing a company to create encryption backdoors. This is quite literally the definition of conscription, impressment, or involuntary servitude. While the FBI may not be technically asking for an encryption backdoor in this particular case, as Marco Rubio pointed out, it is in essence a legal back door to eventually forcing technology companies to cripple the security of their products for the convenience of law enforcement. It is precisely this back door that small-government advocates should be the most concerned about and why I’m surprised they had not yet caught on to this critically important aspect of the situation.
Which dovetails right right into the final argument, that the federal government simply does not have the authority to make such a request. It is simply outside the power given to them through the Constitution by we the people. Therefore such a request is illegal. I don’t know how anyone could justify the federal government violating the very Constitution they are sworn to defend and uphold. I wish Apple were pushing this point harder, because then I believe it would make it crystal-clear to those who claim to support small government and privacy rights.
It is not surprising to me that the campaigns of these candidates are not up to speed on complex technical issues. A technology advisor is not something that has been part and parcel of a political campaign in the past. But with technology issues becoming more and more of a part of modern politics, perhaps it is time for politicians to consult with technology experts prior to drafting policy positions? I’m certainly willing to lend my expertise to any of these campaigns, if they are willing to listen.