Saturday, February 27, 2016

Stop Making Sense

This argument has stopped making sense to me.

A guest on "Charlie Rose" is insisting we need new laws so owners of cell phones know what privacy expectations they can have in their phones; what government can, and cannot do, to crack open the encrypted files on their phones when the need arises.

Which makes no sense to me.  At this very moment the government could force their way into my house and remove every piece of paper in it, under a properly authorized search warrant; and examine ever piece of that paper:  every cancelled check, tax return, book on my shelves, papers from students; all of it.  If I don't let them in, they could force their way through my door.  My house is not rigged to explode if they don't turn the door knob, destroying the contents of my house.  If it were, I would be a very dangerous person indeed, and undoubtedly the subject of a criminal investigation.

None of this, apparently, is supposed to apply to my cell phone.  Why?

The phone company has "metadata" on every call I make; to what number, for what duration.  Google has copies of all the e-mails I send and receive; I presume my cell phone carrier has copies of all my texts, as well.  What privacy do I already have, comparable to what Tim Cook and Google and Microsoft think I should have in my cell phone?

What is so unique about a cell phone?

If I want to conduct criminal business, I can learn to do it in ways that leave no trails:  no phone calls, no text messages, no e-mails.  Do I really deserve a heightened privacy in my cell phone because the law the FBI is using now dates to the 18th century, as does the 4th Amendment?  (one is old, the other isn't?)  Does technology truly fundamentally change the way our laws apply?  Cell phones are different from other phones in only one way (see the metadata reference above):  "smart phones" are handheld computers.

If someone wants the computer I'm typing on now, they can break into my house and steal it.  Or any branch of law enforcement could seize it, under a search warrant.  It has more valuable data to me than my cell phone.  It has never occurred to me that such data should be encrypted, should be so protected that if I forget the password, the data will be erased to keep me from blundering into my own files. It's an Apple computer, but it doesn't automatically encrypt anything, and I'd have to find an app to make it encrypt the way an iPhone apparently does.  I've done my tax returns on this computer.  I've bought things on this computer.  I've never bought anything on my cell phone.  But if I had, the major difference would be this:  my cell phone regularly leaves the house.  I've left it behind before.  I could easily lose it altogether.

And for that reason, the FBI should never be able to access it until Congress has worked out rules that let Tim Cook sleep better at night?  Does it worry him that the FBI could enter my house tomorrow and take my computer and my paper files and my books and all the documents in my house?  No; but it worries him they might open my cell phone.

Why?  Where is the fundamental legal issue in cell phones that isn't foreseen in the words of the 4th Amendment and the 200+ years of legal reasoning now wrapped around it?

Am I missing something here?

1 comment:

  1. Because Apple hasn't made your house part of their branding in the wake of its scandalous workplace conditions and its other relationships with the corporate Chinese state and others.

    The delusion of total online security, the mania to protect it at all costs - even the cost of enabling organized crime, even of the most violent kind - is a sales pitch and the product of the marketed idea that we can have both entirely private communication through computers and the ease of push button living.

    I would suspect that anything Apple or any other company can come up with will be breached or surrendered, if not to the United States government than to governments like the one that dictates in China which have other means of forcing compliance with their wishes.

    I'm not sure that this is the brightest of cases for civil libertarians to bring because all it would take in a case like this is one more incident from those whose identity could, possibly be contained on that cell phone for this to blow up in their faces. From what I've seen large parts of the population aren't on Apple's side on this, though Ted Olsen is, I assume for pay. This could end up causing a lot more damage to the privacy rights of Americans than losing on this point would cost.

    In the mean time, if people want to keep the stuff they do on their phones private, maybe they should consider a slightly less convenient way to do it.