Remember the Will Smith movie “Enemy of the State”? No, this is not a commentary on the racial problems of the Academy Awards (although Chris Rock was hilarious). Back in 1998, the movie depicted the threats of what the government with advanced technological monitoring capabilities could mean for America — or at least for Will Smith’s and Gene Hackman’s characters. The movie ends by, literally, asking, “Who’s going to monitor the monitors?”
Herein lies the ultimate conundrum of intelligence agencies in the “land of the free”: Someone has to protect us, but who is going to protect us from them? I do not profess to know the answer to that question. I do, however, know that Apple, Inc. is not the answer.
When Apple’s CEO announced the company would refuse a court order to create a software trick allowing the FBI access to a dead terrorist’s iPhone, my immediate reaction was to be offended — offended that another big corporation felt its interests were more important than the federal government’s. I was offended that America provided Apple the opportunity to become the company it has become, and now they have the audacity to refuse to help the FBI, disobey the Justice Department and challenge a federal court order. Then I saw a subsequent New York Times alert that read, “Apple is said to be developing security measures to make it harder for the government to break into iPhones.” I was incensed. Apple is now literally going out of its way to obstruct an FBI investigation.
Some have argued that Apple should not be ordered to do something that is not in their normal mode of business (develop software allowing a phone to be opened, or “hacked”). I would argue that refusing federal authorities, in this case, amounts to protecting criminals, which is not their business either. If that sounds excessive, think about what message Apple is sending to criminals or terrorists: “Use our product and the government will never be able to access your information.”
The message to authorities is “If you want to access the iPhone, don’t forget to take the dead criminal’s thumb with you so you can use their thumbprint.” Is that what we do now?
Furthermore, the FBI went through normal, legal protocol for search and seizure to access information important to an open investigation — they got a court order. When the government orders for legal search and seizure, in this country, you produce that information. There is no difference between any information on a dead terrorist’s phone and information that is regularly produced during investigations through subpoenas or search warrants, which includes phone records, emails, texts, notes, financial statements, calendar schedules, travel itineraries and history or even health information. Court orders require that any company or any one of us provide that information. Just because Apple created a more secure vault doesn’t mean the right to privacy is any different.
To this end, Apple, or any other corporation, big or small, should not have more rights to privacy, or privacy protections than any single American citizen.
According to court records, Apple has said what the government is asking of them “could threaten the trust between Apple and its customers and substantially tarnish the Apple brand.” Apple’s brand does not seem like a valid legal argument for obstructing federal authorities. More importantly, Apple is not the first major American company that has been required to do something that (A) is not in their normal business practice or (B) damaging to their brand.
One example is the government mandate requiring all chain restaurants to publicly post calorie counts on their menus. This was not an industry standard, but the government determined that, for the health of its citizens, chain restaurants must make that information readily available. It didn’t matter that McDonald’s or Wendy’s business might suffer because people would realize what the health dangers of their products are. And in that vein, how about the brand of every tobacco product? It was not in the interest of the tobacco industry’s brand to label every package with cancer warnings. Do you think that government mandate didn’t threaten the trust between big tobacco and its customers? Of course it did, but in the interest of public health and safety, the government required companies adjust their businesses and comply with federal mandates. There is an endless list of examples from all industries to the same effect.
Apple, like all companies and all citizens, has a right to operate freely in this country. But nowhere does freedom come without certain sacrifices and responsibilities. Nobody is an Apple customer first, American second.
The question posed in “Enemy of the State” is a completely fair question: “Who monitors the monitors?” And for that matter, who monitors the monitors of the monitors? I don’t have that answer. I do know, however, that it is not Apple’s job to protect people from the government. In a democracy, it is our responsibility to protect ourselves from our government.