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Civil Liberties and Your Cell Phone

Should the federal government have a way to break passcodes or encryption?

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WHAT IT IS

  • Cell phones have a level of security to protect your personal privacy, including passcodes and encryption. [The Wall Street Journal]
  • The FBI, Department of Justice (DOJ), and Department of Defense request that cell phone distributors, like Apple, develop a "back door" or technological solution to gain access to information on personal cell phones in times of crisis. [The New York Times]
  • 2015: The request went public after a terrorist attack in San Bernadino, CA. The FBI needed access to information they believed was on the terrorist's cell phone. Apple defied a court order to crack the encryption.
  • 2016: According to the Pew Research Center, 51% of Americans supported Apple opening the phone for the government; 38% were against it.
  • Some worry allowing access would infringe on civil liberties related to privacy. 
  • Civil liberties are protected freedoms from government interference in one’s pursuit of life and happiness. [Encyclopedia Britiannca
  • The first ten amendments (the Bill of Rights) and the 13th, 14th, and 15th amendments to the U.S. Constitution explicitly protect the freedoms and rights of American citizens. [Encyclopedia Britiannca

WHY IT MATTERS

 

CIVICS: Several layers of civil liberties and legislation are at the heart of this argument. 

  • The Fourth Amendment, which prohibits unlawful seizures of personal information, [National Constitution Center]
  • The Electronic Communications Privacy Act of 1986 (ECPA), which restricts government taps of transmissions of electronic data by computer,
  • And a lack of updated legislation that reflects today's modern era of technology. [Brookings Institute]

SOCIAL: Concessions over civil liberties are imposed on the public by the government in order to protect the safety of Americans - think of TSA procedures or driving speed limits. But America was also built on a healthy skepticism of government and the potential for abuse of power. 

STAY OUT!

User privacy

Many worry that creating a specific technology back door for the government could be a troubling overstep of power and could infringe on Constitutional rights to privacy. 

 

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.

—U.S. Supreme Court Chief Justice John Roberts in Riley v. California (2014)

 

 

Cybersecurity at large

In 2014, Apple argued that if they developed a code for the government to break into the San Bernadino terrorist's phone, the code could be vulnerable to hackers. [The New York Times]

 

Others worry that foreign governments would hack the code and, specific to communist rules, would use it to violate the human rights of their citizens. [American Civil Liberties Union]

 

 

We're doing all we can

Apple complies with court orders to turn over information it has on its servers, such as iCloud data, but it has long argued that it does not have access to material stored only on a locked, encrypted iPhone. [The New York Times]

 

 

Draw the line

Some worry that allowing access may set a precedent for the government to hack into other personal devices. [Forbes]

 

Others worry that the systemic racism in the criminal justice system will use this technology to unjustly target Black Americans and communities of color. [American Civil Liberties Union]

LET THEM IN!

Criminal safety

Law enforcement has argued that Apple has given criminals a "safe haven" by making information on their phones inaccessible. [The New York Times]

 

New York District Attorney argued that Silicon Valley is acting as "unofficial gatekeepers of critical evidence." [Manhattan District Attorney Office]

 

 

Legal access

The FBI continues to insist that the government would only use this technology in times of crisis. [The New York Times]

 

A warrant would be required in this situation. A warrant is granted by a judge, who reviews the offense, probable cause, and evidence that illustrates the defendant's potential crime and need to search the phone. [Legal Information Institute

 

 

No time to spare

With no help from the original maker of the device, the FBI and Department of Defense often say probes or investigations are delayed because they are working to hack the phone.

 

Any time wasted in high states cases like terrorist attacks could put more lives in jeopardy. [The Wall Street Journal]

 

 

Oversight

The legal nature of warrants can act as oversight to any government misuse of power. [Legal Information Institute

 

Others have proposed that Congress must pass legislation that not only mandates technology companies to comply but also puts in guard rails and oversight to government activity. [The Verge]

WHERE WE ARE NOW

  • Feb. 2019: A federal court ordered Apple to unlock the phone. Apple did not comply. [The Washington Post]
  • Mar. 2016: The government released a statement that they unlocked the San Bernadino terrorists cell phone, without the aid of Apple. Some are worried the code will be leaked or hacked. [The New York Times]
  • Jan. 2020: The FBI-Apple fight reignited over a terrorist attack on a military base in Pensacola, Flordia. [The New York Times]
  • There continue to be calls for Congress to pass a legislative solution, requiring technology companies to legally comply with the federal government. To date, there has been no action. [The Verge]

THINGS TO THINK ABOUT

  • Read a write up from The Harvard Gazette on infringements on civil liberties during the COVID-19 pandemic. 
  • What is the difference between civil rights and civil liberties? 
  • American Civil Liberties Union (ACLU) was founded in 1920 to champion constitutional liberties in the United States.
  • Read the NSA surveillance documents released by Snowden in 2013.
  • Read all original reporting from The New York Times on the FBI vs. Apple showdown.
  • Technological innovation has outpaced our privacy protections. What is Congress doing about this?
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