Apple, the FBI, and Unintended Consequences

February 29, 2016  • Charles M. Firestone

(Photo Credit: istockphoto)

Apple’s resistance to the FBI in the San Bernardino iPhone case highlights a number of tensions in American values. It has good and significant equities on both sides. As FBI Chief James Comey admits, it’s the toughest issue he’s faced in Washington. It is not at all the same as the earlier controversy over NSA surveillance of civilians without warrants: it involves law enforcement under judicial supervision, for one thing. On the other side, it forces a company to code against its will, which could be a violation of Apple’s engineers’ freedom of expression or a due process issue in itself.

At the same time authorities are considering this issue, we hear news of a Brazilian submarine cable to Europe being built and marketed for operation next year to avoid having its communications travel through US cables or servers. This comes in the wake of the revelation that the US was spying on Brazil’s president. The juxtaposition of the Apple-FBI case and this one demonstrates both the law of unintended consequences and gives further credence to Tom Friedman’s assertion that we live in a globally interconnected “flat world.” Brazil can connect South America directly to Europe for much of its communications, which is exactly what it is about to do. And at a capital cost of about $250 million it will likely make money in the process. Even American behemoths Google and Facebook are prospective customers.

The workaround is more and more common in many areas of the information and communications world. If something doesn’t work, for whatever reason, let’s find a way around it. Already Apple is devising encryption that even it won’t be able to break at a later time. And if the FBI and Justice Department prevail, whatever the merits, it is likely those whose information they most want to retrieve in the future will find other providers who give them security. It’s happened with Tor, (The [anonymous] Onion Router) on the Internet, it’s happened with new submarine cables to bypass the US, and will very likely happen with smartphones.

Underlying this debate is the issue of trust. Prior to the revelations of NSA spying, the US government and American companies had based their arguments against foreign governmental interference in Internet governance on a simple and compelling rubric: you can trust us. Trust the US Government not to be intrusive, as many other governments are or want to be. Trust American companies, who act independently of the government, more than companies in most other countries. The NSA’s actions (and arguably actions of certain companies who exploited gathered information) pulled the rug out from that argument.

Apple has also pushed the “trust us” button as an important element of its brand. The Justice Department calls it a marketing ploy. As an element of Apple’s brand, it is indeed something they can market. But this hits upon something deeper: trust in a brand goes to the company’s ultimate identity.

Having said all that, other countries can be expected to act in the same way the US Department of Justice has. There are few countries in the world that one would expect to protect individual liberties over the desire to track down criminals, terrorists, subversives, and in some parts of the world, dissidents. I can’t name any, frankly. In the end, though, even when the courts yield to that governmental push, there will increasingly be new ways to submarine around it.

Charlie Firestone is executive director of the Aspen Institute Communications & Society Program.