Encryption and State Power

The question of the FBI and Apple comes down to questions that lie at the heart of the encryption debates. To my mind, it almost seems like a non-starter as far as debating on a macro scale; that is to say, in terms of the question of whether or not the government can have access to one’s phone, the answer is a resounding: yes. They absolutely can have access to your phone if you are a threat to national security, and thus can fall in the purview of the NSA’s jurisdiction. This question, and this news moment, was about law enforcement, and that carries a host of other questions.

Law enforcement simply do not have the same set of tools and abilities that intelligence agencies have. They are bound by US laws in a way that the NSA simply isn’t, and thus the FBI must respect Apple’s right to not give over the encryption software for the iPhone. If this is really something that is needed, other parts of the government can covertly access the data on the phone, and a brute force attack could conceivably get through the passcode (at least that’s what I’ve read some places).

As to the larger question of privacy and the government? Well, it’s just one of those things: our government has access to virtually everything we do. They choose to largely just store it away and not make it active intelligence in any real way, unless we are for some reason drawing their attention. This is of course disturbing and should be fought against, but in terms of this debate about Apple vs. FBI, the question of larger surveillance seems to outweigh the smaller concerns about law enforcement, at least when zooming out to consider the whole picture.

The FBI should be bound in ways that the NSA isn’t (whether I like it or not). They are subject to higher levels of restrictions on privacy and 4th amendment violations. This is clearly an instance where they need to back down.

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