Apple's case may ring in the future

To understand what’s at stake in the battle between Apple and the FBI over cracking open a terrorist’s smartphone, it helps to be able to predict the future of the tech industry.

For that, here’s one bet you’ll never lose money on: Digital technology always grows hungrier for more personal information, and we users nearly always accede to its demands. Today’s smartphones hold a lot of personal data — your correspondence, your photos, your location, your dignity. But tomorrow’s devices, many of which are already around in rudimentary forms, will hold a lot more.

Consider all the technologies we think we want — not just better and more useful phones, but cars that drive themselves, smart assistants you control through voice, or household appliances that you can monitor and manage from afar. Many will have cameras, microphones and sensors gathering more data, and an ever-more-sophisticated mining effort to make sense of it all. Everyday devices will be recording and analysing your every utterance and action.

This gets to why tech companies, not to mention we users, should fear the repercussions of the Apple case. Law enforcement officials and their supporters argue that when armed with a valid court order, the cops should never be locked out of any device that might be important in an investigation.

But if Apple is forced to break its own security to get inside a phone that it had promised users was inviolable, the supposed safety of the always-watching future starts to fall apart. If every device can monitor you, and if they can all be tapped by law enforcement officials under court order, can anyone ever have a truly private conversation? Are we building a world in which there’s no longer any room for keeping secrets?

“This case can’t be a one-time deal,” said Neil Richards, a professor at the Washington University School of Law. “This is about the future.”

Richards is the author of “Intellectual Privacy,” a book that examines the dangers of a society in which technology and law conspire to eliminate the possibility of thinking without fear of surveillance. He argues that intellectual creativity depends on a baseline measure of privacy, and that privacy is being eroded by cameras, microphones and sensors we’re all voluntarily surrounding ourselves with.

“If we care about free expression, we have to care about the ways in which we come up with interesting things to say in the first place,” he said. “And if we are always monitored, always watched, always recorded, we’re going to be much more reluctant to experiment with controversial, eccentric, weird, ‘deviant’ ideas — and most of the ideas that we care about deeply were once highly controversial.”

Richards might sound alarmist, especially to those who believe the FBI’s argument that its request for Apple to hack into one phone is limited to this special circumstance.

“The particular legal issue is actually quite narrow,” James B. Comey Jr, the director of the FBI, wrote in a blog post on Sunday. “We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it.”

But civil liberties activists say they’d have an easier time believing Comey’s assurances if there weren’t a long history of the government relying on legal cases based on old technology to decide how to handle newer technologies. Courts in the 1960s and 1970s created rules for the wiretapping of analogue phone calls; those rulings were later applied as the basis for mass surveillance of the Internet.

“By and large you get very little constitutional protection for data housed by third parties, and that’s mostly a result of a Supreme Court case from the 1960s — before email, before search engines, before social networks,” said Chris Soghoian, the principal technologist at the American Civil Liberties Union.

Soghoian pointed out the government had already tried to turn connected devices into surveillance machines. In a mob case more than a decade ago, the FBI asked a company that made an in-dash roadside assistance device — something like OnStar, which uses a cellular phone to connect to an operator in case of an emergency — to secretly record the private conversations of people inside a car. A court ruled against the FBI’s request, but only on the very narrow ground that bugging the car would have interfered with the proper functioning of the in-dash device.

“The court left open the door to surveillance as long as the primary function of the device was intact,” Soghoian said. “So as long as Amazon Echo can tell you what temperature it is or can still play music, that case seems to suggest that the government might be able to force Amazon to spy on you.”

Soghoian was referring to Amazon’s handy digital assistant, a device that is constantly listening to your household conversations to try to offer you friendly help. The Echo listens for a keyword — “Alexa!” — which prompts it to start streaming your voice to Amazon’s servers to decipher your request. Amazon has said it is not constantly recording people’s voices, and that it keeps voice recordings only to help the system learn to better understand you.

But the Apple case threatens to undermine those promises. If a court can get Apple to hack into an iPhone, why couldn’t it also force Amazon to change the Echo’s security model so the Echo can record everything you say? Soghoian believes the Apple case could set that precedent.

Some readers may argue for a simpler solution to this problem: Opt out of the technologies that could be made to spy on you. There’s some merit to these arguments, but technology has a way of worming its way into our lives without many of us making a conscious choice to let it in. Smartphones and personal computers were once an indulgence; then, as more people began to use them, they became inescapable.

The “Internet of Things” will follow a similar path. “From a historical perspective, we’re entering into a very new era,” said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society. “Now we have a surveillance-enabled world,” Granick said. “It’s cheap, and it’s easy. The question that society has to ask is, Is that what we really want?” he adds.