In the FBI v. Apple fracas, the epithets that have been hurled at President Obama range from hopeless naïf to devilish schemer, to name but the more polite. Indeed, he may be “scheming”, but not in the way that many people think.
When weighing the current “encryption problem,” our sitting president must appear strong on Law and Order while defending our Civil Liberties. It’s a fine line that’s complicated by an awareness that he also must appear “modern”, fully aware of technology’s power and limits. All things considered, I think he’s more than up to to the challenge.
Let’s start with a few assumptions.
Our Constitutional Law President understands that encryption resides on fundamental mathematical truths that cannot be outlawed. These Universal Truths, known as the Factoring Problem, are The Constitution on which various Unbreakable Encryption Laws are based.
As the computer literate Leader of The Free World knows (recall his 2008 campaign – How Obama’s Internet Campaign Changed Politics), unbreakable, open-source encryption technology is available everywhere. Denying it to the law-abiding flock won’t prevent the Bad Guys from using impenetrable cyphers.
Obama also understands that one phone leads to all phones, and then to all of the connected objects in our lives. Cars, thermostats, “security” systems, TVs, Echo voice-operated devices, laptop cameras and microphones… They’ll all be “warrantable”, sometimes with a secret National Security Letter or a FISA order.
As a former Community Organizer and rightly-lauded beacon of sensitivity to civil rights, he surely has calculated the consequences for endangered groups and individuals living under oppressive regimes if the US were to insist on mandatory backdoors.
More materialistically, let’s not forget that Obama has friends in Silicon Valley. It can’t be lost on him that US technology products, laden with a government-mandated Golden Key, would become less attractive to purchasers around the world.
Speaking of Silicon Valley familiarity, Obama knows that you can’t simply conscript Apple engineers to do something they find abhorrent — I have, as Counsel would say, Personal Knowledge of the subject. Some Apple coders have already proclaimed that they would rather quit and be welcomed as heroes at Facebook, Google, or, yes, Microsoft. Others would refuse to comply on ethical grounds, citing the Association for Computing Machinery’s (ACM) ethics code [as always, edits and emphasis mine]:
“Violation of a law or regulation may be ethical when that law or rule has inadequate moral basis or when it conflicts with another law judged to be more important…”
Short of refusal, there’s passive resistance. For Apple engineers, the sweetest revenge against government orders would the classic ‘Sure, No Problem, You’ll Have It In Two Weeks’. Then, a bug crops up, and then another…not intentionally, of course, the critters have a life of their own…
Let’s stop here and turn to President Obama’s talk at South by Southwest last week (full transcript here, video here). With his usual mixture of warm humor and elevating considerations, he begins with reflections on the interplay of government and technology, civic engagement and entrepreneurship.
Towards the end, however, the tone turns somber as the President takes a question on the Apple-FBI situation. After bringing up the unavoidable How Do We Apprehend Monsters question, he concedes the obvious:
“Now, what folks who are on the encryption side will argue is any key whatsoever, even if it starts off as just being directed at one device could end up being used on every device. That’s just the nature of these systems. That is a technical question. I’m not a software engineer. It is, I think, technically true, but I think it can be overstated.”
Our basketball-enthusiast president then performs a quick Euro Step past core questions…
“And so the question now becomes, we as a society — setting aside the specific case between the FBI and Apple, setting aside the commercial interests, concerns about what could the Chinese government do with this even if we trusted the U.S. government — setting aside all those questions, we’re going to have to make some decisions […]”
…and proceeds to the obligatory fair and balanced position:
“I am way on the civil liberties side of this thing. […] But the dangers are real. Maintaining law and order and a civilized society is important. Protecting our kids is important. And so I would just caution against taking an absolutist perspective on this.”
No absolutism, absolutely no exceptions.
This won’t do. The privacy of diplomatic pouches is absolutely protected; so are a journalist’s sources and notes, as are the conversations between FBI Director James Comey and his attorneys while he was preparing to plead ignorance and incompetence in his March 1st testimony before the House Judiciary Committee. Invoking case-by-case First Amendment exceptions is inapt; one cannot compare them to the catastrophic consequences that backdoors would create in our private lives and businesses.
The discussion then takes an even darker turn:
“[…] what you’ll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed, and it will go through Congress in ways that have not been thought through. And then you really will have dangers to our civil liberties…”
President Obama is right to caution us: There’s a long history of police organizations bristling at the limitations imposed upon them by our Bill of Rights. When Something Really Bad happens, officials prey on our aroused emotions to sneak bad laws into the books. In France, these are called Lois Scélérates (Evildoer Laws). Right now, the French are having a go at such reactionary legislation after the November 13th attacks.
The new enforcement tools are almost always abused, even if the abuse is couched as part of a greater good. One such bad example is the civil forfeiture provisions that are used to seize cars and money outside of the usual due process in order to beef up a Police Department’s budget so that the Evildoers can be more effectively thwarted:
“Proponents see civil forfeiture as a powerful tool to thwart criminal organizations… since it allows authorities to seize cash and other assets resulting from narcotics trafficking. They also argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting bad things to good purposes by harming criminals economically while helping law enforcement financially.”
As Theodore Gray (see his impressive bio) puts it in a moving blog post titled It Has Happened Before. It Will Happen Again. And It Can Happen Here:
“America has always been at its best when we have been courageous, not when we have cowered in fear. And let’s make no mistake about it: When a country commits outrageous, population-wide violations of long-held rights and freedoms—in response to attacks by individuals and small armed groups that pose no threat to the nation as a whole—that country is acting out of blind fear.
It is beneath the dignity of the great country I live in to act this way.”
I have my own relationship with the subject. I was conceived in Berlin in 1943 where my parents were “guest workers”, and born in Paris in March 1944. During my childhood and adolescence, I saw what authoritarian regimes could to to their people. One was only hundreds of kilometers away, not thousands of miles. I knew Stasi stories similar to those recounted in The Life Of Others. We all saw how the Komitet (KGB) had free rein over the lives of opponents in Russia.
I recall a discussion in a Paris suburb with a hardcore French Communist – and equally hard Lacanian psychoanalyst. (Hardcore meant that when the gent went on vacation to the Socialist Paradise, he smuggled in ample supplies of toilet paper and mentholated cigarettes.) When I challenged the Soviet Union’s treatment of dissidents, he pointed to the Federation’s Constitution and its guarantee of individual rights. Of course, such protections didn’t apply to the Enemies of The People, these had no rights.
France was more mellow, but the party in power abused surveillance tools with great abandon, much to the opposition’s virtuous indignation…until that same opposition came to power and continued the abuse for their own political and even carnal pursuits.
One might argue I’m unduly paranoid until we remember that we have our own sub-persons that we call Enemy Combatants, or until we recall that, for years, the New York Times had a “bug” in its editing software that deleted the word “torture”.
I believe our President understands all of this, that he believes unbreakable cryptography is the lesser of two bad choices…but he must weigh what he says. Can we really expect him to say that the FBI is wrong? Instead, he lets the FBI push hard, absorbs some of the reflected Law and Order sunshine, and allows the San Bernardino case to take the long, arduous road to the Supreme Court. And Backdoor legislation will be introduced, discussed and discussed, with the Tech Industry up in arms – and dollars – against it.
By then, Barack Obama will be a former President, Free At Last to say what he really thinks. I can’t wait.
JLG,
“By then, Barack Obama will be a former President, Free At Last to say what he really thinks. I can’t wait.”
If this statement isn’t meant as satire, then it is a description of behavior that only be described as pure cowardice, all too common among the political sect.
On another note:
“Speaking of Silicon Valley familiarity, Obama knows that you can’t simply conscript Apple engineers to do something they find abhorrent”
And yet that is exactly what is happening in his Justice department. As I said in the last discussion of this issue, that is what this case is really about. Not this one phone or even whether Congress will, as an exercise of their law making power, force backdoors to be included. It’s whether the government has the legitimate power to force an individual or group of individuals who are not charged with any crime to do its bidding. The judge in the recent New York phone case said no. That’s a relief.
And finally, I’m surprised that you didn’t quote the part of his speech where he said that we as a culture shouldn’t “fetishize our phones.” The resistance to these recent government actions and to the weakening of phone security isn’t about fetishizing anything. Certainly not a physical object. It’s about protecting our privacy, particularly in unwarranted (in the literal sense) situations. But of course since no one wants to be accused of fetishizing something, he has cloaked the resistance to this FBI action as something negative, of which a decent citizen should be ashamed. Pure propoganda.
You’re right. This MN is part satire, part sorrowful examination of executive abuses everywhere. As for fethishizing phones, I didn’t think that throw-away remark desrved mention.
Cowardice? Not sure. Political sect? As the French are fond to say – and promptly ignore, we have the politicians we deserve.
“As the French are fond to say – and promptly ignore, we have the politicians we deserve.”
Now that is something with which we can all agree. Wise words indeed.
JLG, I didn’t mean to imply you were a part of the cowardly political sect, I meant the President. I apologize unreservedly for my poor wording.
Here’s what I meant by cowardly behavior:
The President’s speech was all about blowing smoke up our collective nether-regions as regards a governmental concern for privacy while simultaneously doing nothing to stop the current practices. But there is no honor in such a person who, once relieved of the responsibilities of office (as well as the authority to stop these practices), removes the gloves and pulls no punches in criticism of said practices. In short, I have no respect for a person who can talk a big game while on the sidelines but does nothing while on the playing field.
As for ‘fetishize’ I can understand that no everyone is as annoyed by that as I am. I just see those words as chosen for a strategic reason. I see it as a manipulation tactic, and I want to expose it as such to rob it of its power.
All well said. It’s always the case that most of what we have to fear is fear itself. When my son was about six, he admitted he was afraid of ghosts. I asked why he was scared. Had he seen a ghost? “No, he said. That’s the problem.” That’s US today.
In the Apple vs. FBI case, I’m on Apple’s side, because…
“Only this one phone” claims made by the FBI are absurd.
Many encryption programs besides Apple’s are available to bad people.
Steganography is available is available to bad people, and in some ways it’s superior to encryption.
If a “back door” is created in Apple’s encryption, it will be discovered at some point.
WAY too many members of the public are at serious risk after a back door is discovered.
I’m a bit puzzled by the huge (over- ?) reaction to the iPhone-FBI case, when mass warrantless surveillance, Guantanamo, civil forfeiture, and a host of other frightening/ridiculous/unfair/unconstitutional/…/… laws and practices got through w/o a pip.
I’m thinking this is probably the chic version of John Oliver’s Dick Pic ( https://www.youtube.com/watch?v=XEVlyP4_11M ): people passively or even mildly proactively support / bear with the most egregious stuff in the name of “security”, but then wake up when it’s their phone or their “stuff”.
It’s no mystery. We are the same people Martin Niemoller wrote about in the 1940’s.
We are not enemy combatants, we’ve not been convicted, we’ve no international correspondents. But then they came for our internet.
obarthelemy,
“I’m a bit puzzled by the huge (over- ?) reaction to the iPhone-FBI case, when mass warrantless surveillance, Guantanamo, civil forfeiture…”
There will always be a bigger problem than whatever it is you (not you, specifically, but any person) find to be outrageous. The existence of this bigger problem does not obligate you to abandon your current cause just because something else is even worse.
The question is: Is the problem with which we obsess ourselves a legitimate problem, or is it a tempest in a teapot?
I agree but I think you are missing the point.
You are confusing the public’s reaction to things that had already happened (without many people’s knowledge), to things where they might have a say/vote/opinion about something that has not yet happened.
You are conflating two different situations.
I will say something that is unpleasant as cod liver oil but if we want to have some fun in this someone like Zacarias Moussaoui should be allowed to participate to the talk.
The FBI just blinked.
There’s no hearing on 22 March – it’s cancelled. My guess is that there never will be one.
If a ‘passionate family man’, who happens to be the lame-duck President of the most powerful country on earth, could choose in which one of the following two contexts the word “fetishize” could be ethically applied for said President…and family…to be reasonably sure in the end that they will all live to tell this…or any other story for that matter, …which one might it be:
– [ ] From DoJ to FBI down to State and local law enforcement, with back ended support from Governors-controlled National Guards units, the whole law enforcement apparatus should not fetishize the powerful thrust of fear-inducing intimidation…
– [ ] “We, the People, …”should de-fetishize the empowerment-multiplier effect technology brings to bear upon a human-being multiplicand, one’s own DNA…
In other words, is it worthy of the relatively successful, but homing in fast on completion, Presidential mandate of this deeply loving father and husband to have law enforcement lower their shield, the essential first line of Presidential Security, to make a pivotal point about American self-expressive Democracy in the age of terrorism?
Is Barack Obama foremost a lame-duck, passionate President, …or a timelessly mandated family-man…? This question might appear draped in extreme cynicism, but it happens to be also effective in the extreme, in the Grand-Game-type institutional scheming to pervert, and ultimately bypass People-based Democracy.
DoJ bureaucracy, the institutional FBI, and a lame-duck family-man-President, none can be trusted to abide by the spirit of the Constitutional construct in the age of gradient, gross, all pervasive terrorism mindsets. None.
Apple can. For, this is in essence at the root of their mission statement…and business acumen. They make loads of money out of the antithesis of terrorism, …the human, the humane construct, albeit institutionally isolated…dangerously so.
berult.
Has Obama ever used the word fetish, or its variations, in any other speech?
It seems it was a deliberately chosen stigmatic word.
Has any sitting US president ever used fetish, or a variation, in any public speech?
It seems this word was politically chosen.
Of course it was chosen to stigmatize. Just as the White House’s earlier description of Cook’s rational objections as a “rant” was carefully chosen to stigmatize. Obama’s track record on the fundamental right to privacy has been consistently abysmal. Technology has advanced to the point where our future will either be one of warrant-proof encryption or of an unlimited surveillance state. Perhaps it is just his nature to seek compromise, but on this issue he is likely to be remembered as the Neville Chamberlain of privacy rights.
Jake, nice catch on the use of the word “rant.” I missed one that in the previous statements.
“Technology has advanced to the point where our future will either be one of warrant-proof encryption or of an unlimited surveillance state.”
As one tech writer said, it’s not that the decision is absolutist – it’s that the issue is dichotomous. A middle ground, no matter how earnestly wished for, does not exist, nor can it exist.
The ironic thing about his comment is that Obama himself is well known to have had a fetish for his Blackberry.
@berult, Well said.
@JLG, methinks you give the President far too much credit.
I support Barack Obama.