The iPhone, the Government, and the 28th Amendment

I recently had an exchange in a comment thread with a blogger I follow where I made the case that the iPhone (and by that I mean any smartphone or computer) should have the ability to be encrypted securely. While I recognize that this makes the job of law enforcement harder, I believe it’s essential that digital security remain uncompromised. Once a backdoor into our computers exists, the government and the bad guys surely will have the key, and they’ll be mucking with our stuff.

He countered that houses can be broken into, and judges can serve warrants to search our houses, bank accounts, private pictures, documents and financial records. This should extend to computers and all digital devices. We need to sacrifice our digital liberty and security for the sake of law-enforcement. He said:

The government and/or any motivated nefarious soul can do that now outside of my mobile phone or computer. Landline phones were being tapped for many many decades, or people were being spied upon or stalked for many many centuries, etc. What is so special about the mobile phone? I just do not get it. I understand the capacity for data that it has, but that should not mean it deserves its own special protected category.
I don’t mean to offend but it blows my mind that you don’t see this.

I don’t see it that way at all. Perhaps I know too much about things digital. After all, that’s been my career for 40 years.

I don’t think the argument holds. Just because smallpox killed children in infancy at rates of 50% centuries ago does not mean we can’t come up with a cure and eradicate it. Just because the government could tap into my landlines doesn’t mean it should forever going forward. The problem is that we didn’t transact financial business on our landlines, and we didn’t keep all our valuables in our houses to be broken into and stolen.

Our smartphones are becoming the keepers of our entire identities. I take my phone to the grocery store and pay with Applepay simply by putting my finger on the sensor. No tapping, to typing prices, no swiping. Just my finger, or my code. I buy airline tickets. I buy all my books. I have all my phone numbers in it. I have access to all my personal documents and pictures I took over the past 10 years from it. My phone has access to everything I created and own in the last 10 years – and it’ll get “worse” going forward. People use their phones to control the security systems and locks to their houses. They start their cars. They monitor their children. They have private video chats with their loved ones.

If I simply knew that there were backdoor keys around, I could no longer use it for all those purposes. If I ever lost it, or if it ever got stolen, the thief could do way more damage than the good old wiretaps of decades past, or the thugs that broke into my apartment when I was young and stole my stereo along with that favorite Bob Dylan record that was on the turn table at the time.  The thieves could ruin me. If backdoors exist, thugs in Russian, Chinese and North Korean apartments would start cleaning out the bank accounts of unaware people. A whole new category of crime would be created, far more lucrative than the cons of yesteryear.

So no, the smartphone does not occupy a special category. But by its existence, it requires strong, unbreakable encryption.

This is a technology we now have. We can’t un-invent it. Just like we have fighter planes that changed the way we wage war. The Revolutionary War would be over in a day with a single modern Apache attack helicopter. We can’t go back to the old wars with bayonets and musket balls.

We have a Second Amendment that entitles us to have weapons to protect ourselves. So we can be good guys with guns to protect ourselves from bad guys with guns.

I am proposing a 28th Amendment to make it illegal for government to strongarm technology companies into adulterating their products by disallowing strong encryption or by dictating backdoors into computers. We really need the 28th Amendment to protect the good guys with data from the bad guys that want to get ahold of our data.


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