‘Apple will become the phone of choice for the pedophile. The average pedophile at this point is probably thinking, I’ve got to get an Apple phone.” Setting aside the question of what, exactly, an average pedophile is (or an above-average pedophile, for that matter), take a moment to savor the paranoid, intellectually dishonest, and technologically illiterate imagination of John J. Escalante, Chicago PD’s chief of detectives. He is not alone in his fear: Attorney General Eric Holder, FBI boss James B. Comey, and the editors of the Washington Post are united in their horror of the fact that Apple has taken the radical step of . . . changing the default privacy arrangements on its new telephones.
Apple’s new encryption arrangement means that much of the important information on a telephone — photos, text messages, contacts, calendars, etc. — will be automatically protected from snoopers, including potential snoopers at Apple, who will have no special executive power to override their customers’ encryption and invade their customers’ privacy. (That that is as it should be should go without saying.) The ability to protect that sort of information is far from new; what is new is that on Apple telephones that level of security will be the default standard. Apple products are hardly unique in this regard — the privacy-oriented Blackphone is a status symbol in certain nerdy circles — but Apple products are popular and easy to use, which means that strong encryption is entering the mainstream.
Police agencies have a hard time defeating this level of encryption — that’s what strong encryption is for: to keep the most motivated of snoops from successfully snooping, be they cops or robbers. There have been, for example, child-pornography cases in which the police have seized computers believed to contain illegal images but, unable to decrypt the files, prosecutors could not prove their case. Many law-abiding businessmen, lawyers, and journalists also use strong encryption as a matter of course. For those to whom privacy matters, many tools are available.
We have been down this road before. In the early 1990s, Phil Zimmerman, the creator of an encryption product called Pretty Good Privacy, was investigated by the federal government as though he were an international arms trafficker, his wares having been classified as “munitions.” When copies of PGP started turning up outside the United States, Zimmerman, who was never formally charged, was leaned on as an illegal-munitions exporter. The protests against this were both clever and effective: Zimmerman began selling a book containing the PGP code, which would have forced the government to treat books as munitions to ban their export; another fellow got a PGP encryption key tattooed on his forearm, daring the federal government to classify his epidermis as a weapon of war. PGP is still around, and still popular among people looking for a relatively easy encryption solution. No doubt some criminals rely on it. So do lots of other people.
In a similar way, the newly intense public interest in the “deep web,” the uncharted parts of the Internet where Google doesn’t look and Firefox doesn’t go, is no doubt criminally motivated in large part — it is a haven for the exchange of illegal drugs, illegal pornography, and more — but popular interest in the online underworld is at least in part motivated by the same impulse that turned Bitcoin into a household name: distrust in old, familiar institutions, and the search for alternatives. That tendency is always there, just beneath the surface, but it is culturally and politically significant when it becomes a popular phenomenon.
Anti-snooping solutions are available at both ends of the market. Sophisticated criminals use military-grade encryption and complex communications and financial networks to evade detection; low-level drug dealers long ago discovered the virtues of anonymous, prepaid phones combined with a little operational discipline. In that regard, privacy is a little bit like tax evasion: Everybody knows that there are billionaire crime-syndicate potentates who evade taxes, and that there are struggling waiters and bartenders who are less than vigilant about reporting cash tips to the IRS; but from the Treasury’s point of view, neither one of those is a huge problem. The problem comes when ordinary Americans — the sort of people who buy iPhones — start getting froggy about their taxes, and you find that you don’t have enough agents to investigate them, courts to try them in, or jails to put them in. You get a reminder of what “government by consent” means in practice, as Connecticut demonstrated with its ill-considered gun registry, which Connecticut residents, including the police themselves, simply refused to comply with. There are many ways to reduce government’s practical power, and voting is only one of them.
That’s essentially what is happening with privacy right now. Americans reacting to the massive, invasive, illegal warrantless surveillance of the post-9/11 period are taking steps to protect themselves. And Americans know that it is not only armored vehicles and equipment that make their way from the national-security organizations to local law enforcement: attitudes and tactics have a way of being transmitted osmotically through the same permeable membrane separating military from police. The irony is that Americans’ reaction to warrantless surveillance is going to make it more difficult to execute warrants. You may have a piece of paper that says you can search my computer, but good luck doing so if you can’t defeat the encryption. One of the most important legal questions in the immediate future will be whether the Fifth Amendment’s protection against self-incrimination means that suspects cannot be forced to hand over passwords or decryption keys.
But the current question does not involve criminals, or even criminal suspects; it involves ordinary Apple customers. And that’s why I’m suspicious of Holder et al. and their sky-is-falling chorus. Serious criminals have been doing this stuff forever; what’s got the attorney general and the FBI upset is the prospect that the rest of us — who are not criminals, for the most part — are starting to protect ourselves, too. The editors of the Washington Post, perfectly expressing D.C. officialdom’s conception of itself as an anointed caste, demanded the creation of a “golden key” that would give the right people — you know who they are — the ability to override whatever security measures the rest of us peons might be deploying, subject to the oversight of the proper authorities, of course, presumably including the fine chaps at Lois Lerner’s IRS and Eric Holder’s DOJ. Some bad news for the Washington Post, the rest of the federal clerisy, and the DOJ: You don’t get a golden key. You are not special. You are not in charge. We are in charge, and we’re having second thoughts about trusting you, just now. And until you give us a good reason to change our minds, we’re keeping our private information under wraps.
The response to this, of course, will be John J. Escalante and others shouting “pedophiles!” That is intellectually dishonest. It is the act of making encryption accessible to the general public that has caused this alarm, not having made it available to serious criminals. The latter always have been, and always will be, in the technological avant-garde. Perhaps Escalante could stretch his imagination, or just poke his head outside his office, and come up with a few hundred other reasons that ordinary people might not wish for his department to possess a “golden key” to their personal communications. His department, after all, has been known to fight quite energetically in the cause of privacy — for its own officers, as when it battled the release of the names of the 662 Chicago police officers who each had more than ten misconduct complaints to their names. Hundreds of Chicago police officers have been convicted of serious crimes, and Illinois governors practically have their own prison wing — shouting about pedophilia does not make them magically trustworthy.
And trust and cooperation is what this all comes down to. Technology, from encryption to 3D printing, is challenging at a very basic level government’s ability to regulate what we do, for better and for worse. If you have $1,200 to spend, you can mill your own metal AR-style rifles at home, by the score if you’re so inclined, with no special expertise required. By and large, criminal enterprises such as prostitution and the distribution of marijuana have been rendered almost unpoliceable, the former business being transacted quite publicly with the help of the people who used to publish the Village Voice. If government at the federal, state, or local level wants our cooperation, it must regain our trust. And demands for unrestricted access to our private data coming from the same gang behind the warrantless surveillance program, or from Eric Holder’s politicized DOJ, or from John J. Escalante’s corrupt and ineffective Chicago PD, are not helping to build that trust.
— Kevin D. Williamson is roving correspondent for National Review.