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If Apple Doesn't Let Us Snoop, Children Could Die: FBI Director

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By Mark Wilson, Esq. on September 26, 2014 9:24 AM

Not a week after Apple announced that it couldn't break the new default encryption in iOS 8 even if it had to, FBI Director James Comey fired the first of the government's PR shots at Apple and Google, chiding them for having the audacity to prevent the government from snooping on people's phones at its pleasure.

In Comeyland -- which is a lot like Disneyland, but with more armed guards -- the government always holds the spare key to your diary and if you don't let the government snoop on you, children could die.

Won't Someone Please Think of the Children?

That's not an exaggeration:

There will come a day -- well it comes every day in this business -- when it will matter a great, great deal to the lives of people of all kinds that we be able to with judicial authorization gain access to a kidnapper's or a terrorist or a criminal's device. I just want to make sure we have a good conversation in this country before that day comes. I'd hate to have people look at me and say, "Well how come you can't save this kid," "how come you can't do this thing."

Comey is also suggesting that strong encryption is something that only criminals could want: "What concerns me about this is companies marketing something expressly to allow people to place themselves above the law," he said.

Note the use of the word expressly, as in, the purpose of the encryption is to place a person's data outside the realm of law enforcement, specifically, with a powerful suggestion that the only conceivable purpose for something like that is to allow a person to commit crimes with impunity. Never mind that the purpose of encryption is to prevent anyone from accessing data that don't belong to them, whether it's the police or a hacker in the market for nude selfies.

It should also go without saying (but often doesn't) that the desire for privacy does not, ipso facto, make one a criminal. Our legal tradition has created a realm of privacy out of which is carved room for police investigations, not a realm of state surveillance out of which is carved room for privacy. Comey knows this.

'Terrorism.' Yeah, That's the Ticket.

When the government gets broad new surveillance powers thanks to "terrorism," what does it use those powers for? In 2011, New York magazine showed us why and how often PATRIOT Act "sneak and peek" warrants were issued between 2006 and 2009. For terrorism: 15 times. For drugs: 1,618 times. Here's what that number looks like spelled out: one thousand six hundred eighteen. Here's what that looks like as a proportion: For every one time a sneak and peak warrant was issued to fight terrorism, 108 were issued to look for drugs. Recent press coverage about the confluence of the war on drugs, racial profiling, and police militarization should make all of us incredibly skeptical of government claims that they need more surveillance power than they already have.

As much as Comey wants to frighten the public into believing that security demands Apple not only intentionally weaken their devices' encryption, but also allow the government to snoop on those devices, in fact the exact opposite is true. Strong encryption benefits everyone, and any backdoor Apple builds in can be exploited by anyone for any reason, not just "the good guys."

And no, the burden of justifying privacy doesn't rest on those of us who want to exercise it. It rests on the person who wants to take it away.

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