The Center for Internet and Society at Stanford Law School is a leader in the study of the law and policy around the Internet and other emerging technologies.
If you’ve been paying attention to the fight between Apple and the FBI over the San Bernardino shooter’s iPhone, you’ve probably heard the term “warrant-proof phones” thrown about in an ominous way. In his testimony before the House Judiciary Committee on March 1, FBI director James Comey said, “We’re moving to a place where there are warrant-proof places in our life … That’s a world we’ve never lived in before in the United States.” In its response to a court filing Apple made in California, the government claimed that the “modest burden” Apple faces in complying with the FBI’s request is “largely a result of Apple’s own decision to design and market a nearly warrant-proof phone.”
This is a curious argument. For most of mankind’s history, the overwhelming majority of our communications were warrant-proof in the sense that they just disappeared. They were ephemeral conversations. Even wiretapping was limited to intercepting phone transmissions, not retrieving past conversations. For law enforcement purposes, encrypted phones are equally inaccessible: no one can recover information from them. But Comey’s description of warrant-proof technologies is vague enough to apply to many different things. We should use a different term if we care about the preserving the ephemerality of some communications. Otherwise we might end up with a requirement to store everything.
Right now, there are essentially three types of information technologies that matter to law enforcement:
Those that make data accessible to the government when it has a warrant or has complied with some other form of due process.
Those that make data inaccessible to both government and manufacturers. Think of these as lockout technologies.
Those that fail to store information as data or that systematically and completely erase data after a brief period. These are ephemeral technologies.
dismissed the government’s fears of “going dark,” arguing that we actually live in the “golden age of surveillance.”
Most modern information technologies fall into category 1. This is why law professor Peter Swire and privacy scholar Kenesa Ahmad have dismissed the government’s fears of “going dark,” arguing that we actually live in the “golden age of surveillance.”
The iPhone was in category 1 before 2014, when Apple strengthened its encryption practices. Now the company is trying to get the devices into category 2. Apple could help the government unlock San Bernardino shooter Syed Farook’s phone. But is Apple is going to be allowed to design a phone that it truly could not break into even if it wanted to? Will legislatures deem data too valuable to be forever imprisoned on a hard drive?
