As of Sunday, Apple is still resisting the government order that it provide the FBI with a way of bypassing security on terrorist Syed Farook’s iPhone. Wall Street Journal columnist Holman W. Jenkins, Jr. predicts the government will win out in the end, but it seems that Apple has scored the moral victory.
Before resorting to hysterics, it’s important to understand just what Apple is and is not doing. Like any company or individual, Apple complies with warrants and similar legal means of obtaining information. The company clearly and publicly documents the number and nature of government information requests it receives annually—something it’s by no means legally obliged to do.
But a warrant can only compel a company to release information that it has in its possession. In recent years, and particularly after the Edward Snowden debacle, Apple has made a deliberate and—for a company as secretive as it is—surprisingly public effort to limit the amount of user information it possesses. Messages sent using its iMessage platform, for example, are encrypted in such a way that they are inaccessible even to Apple itself. Without the user’s passcode, lawmakers and thieves and Apple employees alike are unable to access large amounts of important data.
Tim Cook’s letter to Apple customers on February 16 earned mostly positive reviews in the media. Arch-blowhard Donald Trump is calling for a boycott, but most Americans value their digital privacy and aren’t inclined to view Apple as a terrorist sympathizer.
The federal government, meanwhile, made itself look petty and ridiculous. On Friday the Justice Department pouted over Apple’s refusal to comply with the government’s demands, calling it a “marketing strategy.”
Critics on both sides of the battle over Apple’s iPhone encryption have accused the company of staking its position on commercial interests. The Washington Post points out that the statement Apple CEO Tim Cook released was “after all … not a legal brief. It was titled ‘A Letter to our Customers.’”
Apple stands to gain a great deal for its well-manicured brand image if the majority of iPhone users and onlookers support its stand against the government. But if Apple’s decision to resist the government’s request for a security bypass is a commercial one, it’s also, in a way, a democratic one. And it’s not without risk.
Legal ambiguities abound in anti-terrorism cases, and Apple understands that public support can sway the outcome in one direction or another. The will of the public, more so than the law, influences the extent of the government’s ability to get individuals and corporations to cooperate in terror investigations.
Apple isn’t pulling a shallow publicity stunt. Its disagreement with the government is a substantive one over privacy rights. Though the White House insists that the FBI is only asking for a tool to bypass the security on Farook’s phone alone, many others have pointed out that such a tool could easily be adapted to use on other phones. Apple argues that creating a security bypass even in this one case could jeopardize all iPhone users’ security in the long run.
“The U.S. government has asked us for something we simply do not have,” Cook writes, “and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”
Apple argues that to do so would set a dangerous precedent, signaling to law enforcement officials across the country and the world that iPhone user data is up for grabs. Perhaps more importantly, they argue that the special version of iOS could well end up in the hands of hackers, who could use it for any number of nefarious ends.
A point they don’t make explicitly—perhaps because of their need to remain on good terms with the governments of countries such as China—is that an iPhone “backdoor” (a more generalized form of what the FBI is requesting in the San Bernardino case) would be a boon for oppressive states across the world. An average person can easily draw a distinction between a terrorism case and that of a Chinese dissident. The Chinese government is less likely to draw such a distinction.
Still, it’s hard to imagine Apple would take this stand if Americans overwhelmingly supported the FBI’s efforts. But is it a bad thing that one of the world’s largest companies is responsive to the democratic opinion of its customers, who come from almost every conceivable background in the U.S.? In one way, Apple is protecting its commercial interest, but in another it’s letting a lot of Americans vote with their dollars.
Apple’s bold stance, however controversial and however counterintuitive, shows that they are willing to bet the company over their users’ privacy and security. Even the New York Times, rarely a friend of large corporations, has full-throatedly endorsed the company’s decision. It seems that corporate free speech has a place in society, after all.
For those who value privacy, liberty, and limited government, Apple’s actions are a reassuring sign that capitalism, even at its highest levels, can produce principled institutions that, at least sometimes, protect civil liberties more ardently than government can.