How America Can Shore Up Asian Order
A Strategy for Restoring Balance and Legitimacy
By now, the details of Apple’s fight with the FBI are well known: the FBI wants access to an iPhone belonging to the deceased terrorism suspect Syed Farook, who was involved in the San Bernardino, California, attack on December 2, 2015. Farook’s iPhone is encrypted, so the FBI wants Apple to issue a tailored software update that would allow it to bypass the encryption. Apple has responded by refusing to write special software that would eliminate its security protections.
For both sides, the stakes are high. Apple says that complying with the FBI’s orders would set a dangerous precedent, and the FBI hopes that the court will decide in its favor, which it claims would be “instructive for other courts.” There is no real middle ground. Apple might be willing to cooperate with the FBI to solve some terrorism cases (although it is not at all clear that Farook’s work-issued phone is hiding any substantial secrets). But if Apple did offer its help, the FBI and law enforcement authorities would surely be tempted to take advantage, expanding the areas on which they seek collaboration.
Apple and the FBI are also aware that their domestic fight may have serious international repercussions. The outcome of their dispute will create an important precedent for foreign law enforcement agencies that seek data from Apple and other technology firms such as Facebook and Google.
If the FBI wins its case, foreign law enforcement agencies will surely take note. Already, governments are increasingly forcing technology companies to give up their customers’ data, no matter where they are located. Brazil just jailed Facebook’s vice president for Latin America for a day to pressure Facebook to release data wanted for a criminal investigation. France’s Parliament has just voted for a legislative amendment that would impose prison sentences and fines on technology companies that refuse to cooperate in terrorism inquiries. If the FBI wins a concession from Apple, Apple may soon find itself pressured by law enforcement officials in other countries, many of which may not share the United States’ liberal values.
An Apple win would also be of global consequence. It would embolden Apple to strengthen its encryption and software update systems so that it would be nearly impossible for it to comply with similar orders from other governments. This would allow Apple to preempt demands from officials worldwide, but at the expense of making it harder for Apple to comply with legitimate law enforcement requests—not to mention making it harder for Apple to help its own customers when they forget their passwords and lose access to their data.
Apple and the FBI are aware that their domestic fight may have serious international repercussions.
The U.S. Congress can resolve the Apple quandary by setting new rules governing encryption and law enforcement access. Congress may decide to treat phone manufacturers like telecommunications companies, for example, requiring them to provide access, although some U.S. legislators are skeptical of the FBI’s argument. Yet even these rules would have international impact. Law enforcement agencies worldwide want access to the kinds of data that Apple and Google and Facebook hold on their citizens. In many countries, they might use these data in ways that undermine the principles of a free and open Internet—for example, by forcing technology companies systematically to undermine protections on personal information. Intel has warned that a government victory would be seen as an “invitation to require technology companies . . . to undermine the security of their products to suit foreign interests.”
Law enforcement agencies tend to think nationally. It isn’t the FBI’s job to think about how its demands might weaken Apple or other technology companies looking to protect their customers from police states. But its actions matter around the world. And the situation becomes even more complicated when U.S. law enforcement agencies want information that is held overseas. Consider the current Microsoft controversy. The U.S. Department of Justice has demanded that Microsoft fork over e-mail records to aid it in an unnamed domestic criminal case. Yet these records are held on servers located in Ireland. Under U.S. law, judges in the United States may be able to compel Microsoft to comply. But if they do, they may force Microsoft to break Irish and European law.
In theory, international agreements would govern the relationship between law enforcement agencies and businesses, creating a common framework for handling controversies such as the Apple and Microsoft disputes. Yet no such agreements currently exist. States disagree sharply over whose rules should apply and when. The Council of Europe Convention on Cybercrime, which was designed to resolve these issues, has been a failure since it ignores the strong disagreements among states over what constitutes a crime. Bilateral efforts to exchange information through Mutual Legal Assistance Treaties have been cumbersome at best and unworkable at worst. Even UN-level antiterrorism coordination has been hampered by the inability of states to agree on a definition of terrorism.
Over the longer term, global authorities will have to choose between two different worlds. In one, technology companies would increasingly cooperate with government law enforcement, providing them with relatively easy access to data. This is the world favored by Apple’s embattled competitor BlackBerry, which has announced that its “privacy commitment does not extend to criminals.” In this world, criminals will find it harder to evade law enforcement, but so will dissidents in authoritarian regimes, as well as people who have committed minor infractions.
In the other world, the kinds of solutions favored by Apple will prevail. Strong cryptography becomes semi-ubiquitous, and individuals have much greater control over their data. Citizens will have an easy time keeping the nose of law enforcement out of their personal business and hiding political communications that nondemocratic governments may not like. Criminals or terrorists might also be able to better conceal their actions.
Both of these worlds involve tradeoffs. When the science-fiction writer William Gibson famously said that “the street finds its own uses for things,” he meant that new technologies would be used in all sorts of unexpected ways, some socially beneficial, others malign. The Apple controversy illustrates how hard it is to suppress the malign uses of a technology without undermining many of its benefits—and vice versa.