March 29, 2024

The Return Of The Big Brother

March 25, 2016

Somewhere in Traverse City, a young man reclines in a lazy-boy chair, opens his iPhone and proceeds to pour out his heart to a girl in Kalamazoo. He reminds her of their shared intimate moments and the things they have done in the privacy of their respective apartments. Then, without any sense of shame, pride or dignity, he begs her to come back.

Taking care to encrypt his lamentable message, he dispatches it to her. He’s done this so many times before, each time with the same result. But he doesn’t care how he looks; nobody but her will ever see his message.

In another part of town, a woman lies nude on her bed, snapping pictures of her body in provocative poses. She encrypts the photos and dispatches them to her lover in Grand Rapids. The exchange of pictures fills the void via this private means of transmission.

Attorney Wiersma sits in East Lansing and puts the finishing touches on a contract he has been working on day and night. Satisfied that the documents contain the full agreement to secretly purchase a silent partner’s share in a company he does not wish to be publically associated with, he encrypts the document and dispatches it to the sellers’ attorney. He thanks the gods for the cloak of anonimity the iPhone’s encryption provides him.

All over America, law-abiding citizens perform similar acts of private behavior with the belief that encryption has allowed them to act at a distance while maintaining their privacy.

"But what if I have nothing to hide?" is a common refrain from some people when discussing the news of yet another official intrusion into our private lives via the NSA and other government spying programs.

"Why should I encrypt my texts?" is another refrain we hear; and my answer is almost always the same: According to a cache of PowerPoint slides released by Edward Snowden, it seems the NSA has been actively hunting down encryption efforts for years and exterminating any cryptography that could pose a threat to its ability to read our texts, track our calls, and rifle through our private emails (and it scarcely needs adding, viewing our private photos).

Turning our private lives over to the government and expecting protection is like drinking salty water and expecting it to quench our thirst. It is as plausible as teaching a fish to drive a car.

A battle between Apple and the U.S Justice Department has been raging since February, when the government obtained a court order demanding that Apple write new software to help law enforcement officials unlock an iPhone associated with one of the shooters in the December attack in San Bernardino, Calif. that killed 14 people.

As an attorney, I’ve been surprised by the number of Americans who agree with this dubious ruling. Those who agree with the government have said that Apple’s refusal is unpatriotic because it provides shelter to potential terrorists who may well be plotting new attacks. History has shown that claims of patriotism are the last refuge for scoundrels and despots alike.

In a carefully calibrated threat, the U.S. Justice Department last week suggested that it would be willing to demand that Apple turn over the "source code" that underlies its products as well as the so-called "signing key" that validates software as coming from Apple.

Not only does the government not respect the danger its actions pose to our privacy, its threat makes clear that the government doesn’t respect the property rights of a private corporation. Who do they think they are? Vladimir Putin?

Fifty years ago, Friedrich A. Hayek discussed in "The Road to Serfdom" how governments quietly and stealthily erode our freedom. Seldom, he argued, do we lose our freedoms and liberties all at once. The individuals we entrust with vast government powers know that the quickest way to get citizens to surrender their rights is little by little, and in the name of patriotism.

We wake up one day asking, "What happened to our rights?" "But didn’t we keep you safe from the terrorists?" Yet who keeps us safe from the fearsome powers of our government?

Benjamin Franklin wrote, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." Recently, President Obama warned Americans against "fetishizing our phones above other value." If you can figure out what he means by that, move to the head of the class; you are smarter than I.

The least interesting feature of an iPhone is its phone. It’s a computer that contains some of the most intimate aspects of our lives: credit card transactions, photos of children and family and friends, messages to spouses and others, and medical information. iPhones can also record every place you’ve been lately. Giving the government access to the contents of a citizen’s phone essentially provides surveillances and wiretaps without the niceties of a court order.

Also remember: The information the government seeks is not even in Apple’s possession; it’s in the phone that is in the government’s possession.

The government has previously attempted to use the All Writs Act of 1789 to break into a citizen’s iPhone. New York Telephone cited the 227-year-old law in an effort to compel Apple to help it access data on a meth dealer’s phone (bet you didn’t know there were iPhones 227 years ago). The Federal Magistrate in New York ruled that the government had failed to establish that the law gave it such authority.

Clearly the government’s arguments are weak and overreaching. The All Writs Act, codified at 28 U.S.C. Sec. 1651, simply authorizes the U.S. federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

"We’re being forced to become an agent of law enforcement," an Apple lawyer said in court. I agree. If we allow the government to force a private corporation to perform law enforcement duties, what’s to stop the government from using that same power against private individuals?

The legal brief filed in the Federal District Court for the Central District of California sums up this matter quite nicely: "The government’s methods for achieving its objectives are contrary to the rule of law, the democratic process and the rights of the American people."

Isiah Smith, Jr. is a former newspaper columnist for the Miami Times. He worked as a psychotherapist before attending the University of Miami Law School, where he also received a Master’s Degree in Psychology. In December 2013, he retired from the Department of Energy’s Office of General Counsel, where he served as a deputy assistant general counsel for administrative litigation and information law. Isiah lives in Traverse City with his wife, Marlene.

Trending

Mysterious Michigan Reads

We can’t think of a better way to spend spring break than with a great book. Northern Express asked local bookseller... Read More >>

Heirloom Recipes With Heritage, History, and Nostalgia

Before we begin to stash our coats and put winter behind us, let us remember what years past have taught us…fake sp... Read More >>

A Floral Family Affair

In the quaint downtown of Elk Rapids sits Golden Hill Farms, a shop where the artistry of floristry meets the rustic charm... Read More >>

A Look at Originalism

O Tempora O Mores! Oh the times, oh the culture. This Latin phrase relates to both the 18th century and our current times.... Read More >>