Mimesis Law
14 December 2019

FBI Director Comey To Apple: Do As You’re Told

Feb. 23, 2016 (Mimesis Law) — January 30th was Fred Korematsu day in California. Korematsu  was one of thousands of people of Japanese ancestry held in concentration camps, because the government would not risk their disloyalty. The United States Supreme Court sympathized, it claimed, with these displaced citizens, but held that:

[H]ardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.

That was in a simpler time. A time when war was not perpetual, emergencies ongoing, and exigency ever present. But now, to continue its ever-present war on terror, the government has asked that Apple be forced, without compensation, to create a specialized tool for breaking into its phones. It is simply, the government says, one of the hardships of citizenship in a free country that we must do whatever we are told.

Apple has complained of course. It issued a letter to the public, decrying the government’s attempts to endanger the safety of hundreds of millions of users and potentially opening their phone to exploitation by terrorists, in exchange for cracking this one cell phone.

Let’s ignore for the moment that the federal government deliberately triggered this emergency by asking county authorities to reset the password on the phone, or else were simply too incompetent to realize that might be a bad idea. So much for Jim Comey’s promise to the victims to provide a “thorough and professional investigation under the law.”

Instead what Comey has provided to the victims is a lame excuse. “Even if we hadn’t screwed up, there still might be information we couldn’t get.” A thorough and professional investigation does not require explaining tossing away good, accessible information so that you can pursue an unprecedented plan to place Apple into involuntary servitude.

Let us also ignore that there is unlikely to be any usable information on the phone that has not already been accessed by its cloud-backup, and that the perpetrators of the San Bernadino attacks had already destroyed all incriminating electronic devices.

Let’s just focus instead for a moment, on what it means when a government overbears your will. Not because you have done something wrong, mind you. But because it believes that this hardship is simply one of the burdens of citizenship.

Comey claims that his case is about tension placed between two values, safety and privacy. But this is a lie. There is no evidence that finding the information on this phone will make anyone safer, or that people generally are safer when the government has more information about them.

Just ask Martin Luther King, who became the victim of the FBI’s vast informational reach when they sought to blackmail him for his sexual transgressions into suicide, the better to serve J. Edgar Hoover’s political ends.

Nor is the value on the other side of this debate about privacy. A loss of privacy will be the fallout if Apple chooses not to obey the order. But what is really on the other side is liberty. The liberty to say no to the government. The liberty to stand on principle and remain unmoved by threats of force.

Perhaps the wisest words in this ongoing debacle come from Comey himself, attempting to claim the mantle of the reasonable man:

This issue should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.

Mr. Comey, we had that discussion. We had it in 1776, when we decided to secede from the British Empire rather than be reduced to an “arbitrary government.” We had it again in 1791, when we decided that the government could not force us to speak. That it could not take from us without just compensation. We have lived with that balance for a very long time.

What Comey seeks is not a way to help the victims of San Bernadino, who the DOJ graciously provided a lawyer to act as spokesman. He seeks, as Empty Wheel points out, the wide-ranging ability to break encryption on cell phones so that the government can access information in “murder cases, car accident cases, kidnapping cases, [and] drug cases.” And he seeks the ability to force us, all of us, to help him.

In the aftermath of Pearl Harbor, our government was willing to take any action to remain safe. It asked us, the citizens, to trust its judgment. And it was wrong.

All that Apple asks is that the next time a Korematsu comes around, as Justice Scalia once assured us it would, we have the freedom not to assist. Let’s not set a precedent that places the convenience of our government over the conscience of its citizens.  Again.

3 Comments on this post.

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  • Dawn
    23 February 2016 at 10:02 am - Reply

    I wonder what would happen if Apple relented and agreed to the FBI’s demands but the actual workers, the actual people attached to the human hands necessary to accomplish the goal, refused. I assume Mr. Cook is incapable of producing the desired “key” on his own. It would be necessary for Apple employees to do the actual manufacturing. What if they refused? As in, NO-I’m not loading this board into the machine to solder the pieces on; NO-I’m not writing a code to run this; NO NO and NO. What then? Can an individual be compelled to perform actual labor?

  • Raccoon Strait
    23 February 2016 at 11:25 am - Reply

    There appears to be a small conflict with regard to the other two phones. An Emptywheel.net article yesterday re: the Pew Poll linked to a Slate article where this statement was made:

    “Remember, Farook and Malik had at least two other phones, ones they attempted to destroy. Despite those efforts, the FBI has, given Comey’s public statements, been able to access the contents of those phones. The attackers succeeded in hiding a hard drive, the contents of which are likely far more interesting than this phone, but which the FBI rightly appears to assume is simply impossible for anyone—including the manufacturer—to recreate. But the pair left this phone in a Lexus in their garage, untouched. While Pluhar suspects Farook turned off the auto-backup function sometime after Oct. 19, 2015, the killer certainly didn’t treat this work phone with the same attention he did his other phones or that hard drive.”

    http://www.slate.com/articles/technology/future_tense/2016/02/the_apple_fbi_encryption_battle_is_over_an_iphone_unlikely_to_yield_critical.single.html

    This is the first I have heard that those other phones were not destroyed. Other than pointing out Comey is lying about the need to get into the Counties phone, I am not sure how important this is.

    This information does not deter me from agreeing with your position. Everything is not the governments business, but some limited parts of everything, those parts needed for justice as apposed to those parts that comport with freedom and liberty, which include privacy. The government does not get to determine that difference on its own.

    • Andrew Fleischman
      23 February 2016 at 3:05 pm - Reply

      Thanks very much for the factual update. I try my best to be accurate, but this is a complicated case, and I always appreciate it when a reader brings more information to the table.