FBI vs Apple: Informed Dialog on Privacy vs Security Is Key

Editor’s note: This is the fifth in a five-part series on this topic. This examination by Arnold Abraham provides insights and nuanced lessons from history, the law and the tech world that can inform all of us interested in both privacy and security.   For a detailed legal analysis accompanying the article, please visit Thecyberlawteam.com/publications-1/   -bg

The anti-climatic resolution of the 2016 case of FBI versus Apple did not signal the end of Crypto Wars 2.0. The conflict will go on and ultimately impact the level of privacy in society.

Will we be able to maintain the carefully crafted balance that has served the nation well since its founding?  As depicted in the fictional account “The Circle,” we should be careful what we ask for when it comes to privacy. In that novel, the author imagined a world where nothing was private under the theme that “All that happens must be known.”  Apple’s desired outcome for this case would lead to the opposite version of that world; one where the government is unable to fulfill its law enforcement function because it is completely blinded from being able to access information in what has become the most commonly carried device in the world. Extremes on both ends of the privacy spectrum are unpalatable, which leaves the solution somewhere in between. This balance is already properly struck by the Fourth Amendment.

Is it possible to support wide use of strong encryption, but still remain true to the Fourth Amendment?  As Supreme Court Justice Alito noted, the optimal path forward may require legislation: “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”

In the meantime though, it should be noted that the fact FBI found a way to bypass the data protection without Apple’s assistance did not equate to an opening of Pandora’s box. Instead of realizing the predictions of doom and gloom, the situation is much as it was in 2015, before iOS8 was fielded. The lesson learned should be that it must be the law that decides the outcome of such actions, instead of the ebb and flow of technology. Alternatively, we must now embark upon a new arms race in cyberspace, not between superpowers, but between our government and its own citizens.

Arnold Abraham

Founding Partner at CyberLaw Group
Arnold Abraham, Esq. is Founding Partner of The CyberLaw Group where he focuses on litigation and mediation of disputes in cyberspace.He previously served as a senior executive level civilian in the DoD, Department of Homeland Security, and Office of the Director of National Intelligence. He has been one of the thought-leaders in the field of cyber warfare since the late 1990s and was recognized by the CIA with the National Intelligence Medal of Achievement for his groundbreaking analysis.
About Arnold Abraham

Arnold Abraham, Esq. is Founding Partner of The CyberLaw Group where he focuses on litigation and mediation of disputes in cyberspace. He previously served as a senior executive level civilian in the DoD, Department of Homeland Security, and Office of the Director of National Intelligence. He has been one of the thought-leaders in the field of cyber warfare since the late 1990s and was recognized by the CIA with the National Intelligence Medal of Achievement for his groundbreaking analysis.

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