Your birthday, a pet’s name, or the nostalgia of a high school sports number: the composition of our iPhone passwords can seem so simple. But a recent case levied by the FBI against Apple has led to a conflict over the integrity of these passwords and has sparked debate concerning privacy and security. A California court ordered Apple to produce a feature that would circumvent software that is inhibiting the FBI from accessing the phone of Syed Farook, who, along with his wife, allegedly committed the San Bernardino terrorist attacks.
Apple is challenging the ruling, claiming it sets a dangerous precedent for consumer security. Tim Cook said about the case, “some things are hard and some things are right. And some things are both. This is one of those things.” The conflict between Apple and the FBI seems dichotomous, with Apple standing up for privacy rights and the FBI trying to bolster its investigative powers. Moral dilemmas begin to arise after analyzing how the case has played out within the legal system. These dilemmas concern U.S. governance structures and the process by which novel legal developments emerge.
By looking at the institutional atmosphere, we can see a lack of constitutive dialogue within elective governance structures concerning this important issue. The FBI’s case rests on the All Writs Act of 1798, dating back 87 years before Alexander Graham Bell invented the telephone. This demonstrates the vacancy of relevant legal sources in any way related to the technological developments and cyber security pressures of the 21st century. This is primarily due to the absolute dearth of legislation coming out of Congress concerning these issues. A lack of cyber security expertise and the absence of political will has left the intersection of privacy and security without congressional leadership.
Some members of Congress have proposed a Commission of Cyber Security and Privacy, while others have suggested that the Apple vs. FBI case be put into legislative hands. More opinionated members of Congress are calling for legislation that would force companies like Apple to unlock the phones of criminals. Beyond these limited efforts, there is a lack of genuine dialogue in the legislative chambers of the Federal government concerning issues of privacy and security. This stifles mechanisms by which constituents understand their respective representatives’ positions on these issues. There is an obvious need for more robust dialogue and investigation into these issues, especially as the public and the federal government try to cope with a rising fear of terrorism in a post-Snowden world.
Tim Cook suggests that this ruling would “trample on civil liberties,” while FBI Chief Hon. James Comey admits that, “the larger question should not be settled in the courts,” and that this extends into, “who we want to be as a country, and how we want to govern ourselves.” This reveals the need for legislative processes at the federal level. Leaving this matter completely to the courts to decide is to steer the debate away from stewardship of elective institutions. This issue is representative of the personal and national values we wish to carry into the technological future. Stagnation in Congress is limiting the ability of US government structures to develop policy based on constructive debate and constituent input.
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Burger is a senior Prindle Intern from New Albany, Indiana.