Since my last post about encryption vs. security the public debate has exploded due to Tim Cook’s response to the request by the FBI to create a back door in an Apple device.

In his most recent podcast Sam Harris weighed in as well. I always look forward to Harris’ perspective on a topic. He is thorough, approaches the topic from an unbiased (as much as anyone can) perspective, and creates interesting thought experiments that uncover angles of the topic at hand that often I had missed.

This case is no different. Harris came out against Cook’s position, admitting though, that this was only his first go at the topic. He brought several points which I overlooked in my previous essay, but I think he overlooked the point that I brought in my first go. His initial analysis deepened my thoughts about the topic so I thought I’d write a follow-up bringing his points and adding a few of my own.

I’d like to start out by noting that the FBI has not asked Apple to create a backdoor to their encryption; rather, they are asking for a way for them to brute force attack the PIN on the iPhone. This is an important distinction. Creating a backdoor to an implementation of encryption would fundamentally undermine all communications and data using that implementation. This is binary, you either have secure encryption or you don’t. While their request is not for a backdoor into encryption, their request did spark a debate on the overall greater topic.

Harris presents the issue thusly: The security system built into the iPhones is so strong that not even Apple can get into their iPhones. The problem is that there may be information buried inside the phone in question that can shed light on the San Bernardino shootings. Is there a greater network of collaborators planning something? Who were the shooters in contact with? He asks: How valuable would it be to see what’s inside the San Bernardino cellphones, which jihadists are among their friends?

Harris deepens the stakes by pointing out: there have been cases of murders that have been solved because people recorded their own murder and left their phone unlocked. There have been other cases where law enforcement knows that the victim was texting with someone up until their murder, potentially with their murderer, and they cannot find out who it was because the phone was locked.

The thought experiment Harris brings here is whether one has the right to build a room that’s impregnable. A room that only you can get access to; no one on earth, no matter what public interest would be served, can get access to it, even in the event of your death or a court order.

Harris states: “People are imagining that they have a right which never existed, and could never exist in the real world.”

My issue with this analogy is that cellphones are not just rooms that store things we want to keep safe. They effectively track every aspect of our lives. They’re always listening, tracking every movement, every communication. The problem, as I see it, is that the cellphone tracks its owner in a way that has never existed in the past either.

This is where the differentiation between what the FBI is asking for and the greater debate about encryption is important. I agree here with Harris that if the FBI is asking for a better way to hack into a specific phone without actually undermining all encryption for everyone, then yes, a court should be able to order Apple to unlock a specific physical device that law enforcement has in custody.

Basic Contractarianism: as members of a society we have given up certain natural freedoms in exchange for protection. We expect law enforcement to protect us, and when we break the law we are breaking our contract. The impregnable room breaks this contract as well.

On the other hand, Apple is a multinational company where if they are forced into opening a phone it creates a precedence for other countries that don’t necessarily have the same social contact based on fair rights that we do. This is an entirely different issue that has been pulled into the encryption debate as pertains to multinational companies and government authority.

Enabling a dormant backdoor into cellphones that can be opened, at will, by law enforcement anywhere across all boundaries is a very different issue from opening a specific device that requires physical access to unlock. This, as I have already stated, is a lot closer to installing dormant cameras into everyone’s homes that can be turned on at will, than it is to giving a skeleton key to all private safes. The problem with how technology works is that these boundaries aren’t necessarily enforceable.

We already know that this is what law enforcement is already doing with similar tools. But even if they are following the spirit and letter of the law pertaining to civilian surveillance, this type of potential immediate access to the innermost lives of everyone goes far beyond any previous potential power law enforcement has had, and it changes us.

While it may be “a right which never existed,” technology has enabled surveillance in a way that has never existed before. I think more than ever we need to have this discussion and think about what rights to privacy we have.

A second analogy Harris brings is the idea of a drug that makes your DNA unanalyzable. In this scenario, you can potentially do whatever you like, and if you take this drug, your DNA will never be traced back to you.

Again, like the previous analogy, this does not get into the broader discussion of undermining the security of encryption. This _is _a closer analogy to the greater discussion though, as I mentioned before: cellphones track every aspect of our lives.

I think a different question to ask is: If scientists are able to read someone’s brain, would a court order supersede the right for someone not to incriminate themselves? Let’s say we develop the ability to convert our consciousness digitally and back it up. Would that ability give law enforcement the right to have access to our thoughts? Will there be a thought police?

We’re clearly living in interesting times, philosophically. These are important questions to debate. They should be debated publicly. As I mentioned before, I always look forward to Harris’ perspective on a topic. This is no different, and I’m looking forward to hearing his further thoughts. I don’t think Harris is entirely wrong, but it is clear that this attempt at the subject was cursory and possibly missed some important factors.

About the image: French Quarter, New Orleans, LA