February 18, 2016

BERKOWITZ | The War We Are Now Seeing

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Last semester, I wrote “The War We Are Not Seeing,” a column looking into the complex and unfolding standoff between technology companies and government officials over how to handle encryption for matters of national security. This week, the so-called “war we are not seeing” became very visible to the American public, so I think it’s important to revisit the subject. When we left off in the fall, my hope was that technology companies and federal investigators would work together to achieve a satisfactory balance of privacy rights and national security interests.

So much for cooperation. On Tuesday, U.S. Magistrate Judge Judge Sheri Pym ordered Apple to comply with the FBI to help unlock an iPhone involved in the San Bernardino terrorist investigation. Apple CEO Tim Cook, who has now inadvertently become the leader amongst tech giants and privacy advocates, has since responded by not only reiterating its vehement resistance to creating a “backdoor” on privacy grounds, but promising to challenge the court’s decision in response to what it believes to be a dangerous precedent for future government incursions. The FBI contends their request is both lawful and simply a one-time aid that does not put people’s privacy at risk. With Apple and the FBI seemingly drawing a line in the sand, the questions to ask are: who is right and where do we go from here?

Perhaps the law can shed some light on these questions. The first statute to consider is the All Writs Act of 1789, the chief law referenced in support of the Judge Pym’s ruling. The Act states, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” It’s hard to fathom that a seemingly innocuous and unassuming line of text from 1789 is the basis of one of the most complex privacy debates of the 21st century, yet this is the reality we’re faced with.

What’s more confusing is that different courts have offered different interpretations of whether the statute can be used to compel technology companies to assist the government. For example, last year, in a separate case involving Apple, U.S. District Judge James Orenstein explicitly repudiated using the All Writs Act of 1789 to force the tech giant’s hand for being too vague to be useful in setting standards for this new generation of technology. He also asserted that Congress has thus far failed to act to settle this debate, saying “This case falls in the murkier area in which Congress is plainly aware of the lack of statutory authority and has thus far failed either to create or reject it.”

Is Judge Orenstein right? Has Congress not passed a single law to address this issue? Before considering Congressional action, it’s important to acknowledge that the Supreme Court did use the All Writs Act to support its ruling in U.S. v. New York (1977), which made it mandatory for a phone company to install call-tracing equipment. Since then, Congress passed the Communications Assistance for Law Enforcement Act in 1994. This act required carriers such as Verizon and AT&T to help make intercepting calls in real time a possibility. While this act has been amended to apply to new technologies like broadband Internet, it has not been expanded to include technology companies such as Apple. Optimistically, we can hope this was an intentional decision by our legislatures to let this issue play out in the courts, given its complexity (as opposed to political nonsense). Regardless, it’s no wonder that judges have been differing over how to interpret a statute from over 200 years ago in light of no recent legislative guidance.

Returning to the first question of who’s right and who’s wrong, we can surmise that there’s simply no undisputed precedent to guide this answer. Privacy advocates will never feel comfortable with government intrusion, while federal investigators may equate a lack of cooperation as a major victory for the criminals they seek to put to justice.

Without an easy answer in mind, where can we go from here? Apple and the FBI both seem to have very legitimate interests to protect that in one way or another affect all Americans, so it’s important for the public discourse to continue. The American people must play their role by listening and continuing to painstakingly discuss both arguments in order to make meaningful strides toward achieving consensus. From a legal perspective, congress must also thoroughly discuss these issues in a 21st century context rather than, like the Courts, depending on an antiquated and ambiguous law clearly not designed to address the smartphone generation.

Last fall, and still today, the hope was for tech giants and the government to compromise. Unfortunately, given the developments this week, it seems we are farther away from this middle ground than closer. Until such a compromise is reached, and with battle lines being drawn between privacy advocates and government advocates, we must take a good hard look at where the American people and our legislatures stand and hope that the opposing sides will be willing to listen.

Ethan Berkowitz is a senior in the College of Industrial and Labor Relations. Views From the 14853 appears alternate Fridays this semester.

One thought on “BERKOWITZ | The War We Are Now Seeing

  1. Your excellent articles appear on my “google-alerts” because I follow your namesake, Ethan Berkowitz who is mayor of Anchorage, is my son. All the best to you.

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