Apple’s recent civil disobedience has the country engrossed in a conversation about the balance between privacy rights and security, but let’s not forget it wasn’t an iPhone that killed 14 people in San Bernardino last December; it was four guns, including two handguns and two assault rifles that had been unlawfully altered to be more powerful and deadly.
Strict NRA constructionists will argue it wasn’t the guns or stockpiles of ammunition or pipe bombs jerry-rigged to a remote control car that killed innocent county employees enjoying a holiday gathering; it was the two criminals, Syed Rizwan Farook and Tashfeen Malik, who bear responsibility.
But rights and responsibilities go arm in arm, so if in fact guns don’t commit crimes, people do, then guns don’t have rights either, including any right to privacy. An individual may have the right to bear arms, but a gun doesn’t have any more inherent rights than any other item of personal property, including a smartphone.
People have rights and responsibilities, and if you believe the only thing that can stop a bad guy with a gun is a good guy with a gun, then isn’t the only way to stop a bad guy from hacking a phone also to stop a good guy from hacking a phone?
Using a law from 1789, a federal magistrate has ordered Apple to create a technological key to unlock the iPhone used in connection with the mass shooting in San Bernadino, but the company is rightfully questioning the court’s authority and cautioning against opening Pandora’s box.
Any such key engineered for a seemingly good cause, Apple’s CEO Tim Cook says, will by default be used as a master key to unlock the iPhones of innocent people everywhere by rogue governments and criminals, causing more damage than good.
The conflict shines light on the elephant in the room. America’s 21st-century justice system is stuck with 18th-century laws because of obstruction by extremists in Washington who complain about the size of government instead of passing new laws that would address today’s important challenges of cybersecurity and crime.
This issue of encrypted phones created by private companies being inaccessible to law enforcement begs the question whether the feds are ordering Apple to unlock iPhones because government is too big or not big enough. A budget is not the measurement of all things. In today’s computer age, power is measured by speed, so it’s time we gauge the appropriate size of government by how quickly and effectively it responds to societal challenges. In this case, the challenge isn’t necessarily encryption, it’s cybersecurity, terrorism and gun violence. Americans are being terrorized by people wielding assault weapons aided and abetted by technology.
The smartest phones can’t tell the difference between a Chinese spy and an FBI agent. Like guns, iPhones can’t distinguish good guys from bad guys, but surely smart people can design smarter phones and guns, and the American people can demand smarter solutions.
Instead of – or in addition to – ordering Apple to build a technological back door to its phones, why aren’t we ordering weapons makers to put technology in their products that can be used by law enforcement to protect us from gun violence? Do guys with assault weapons and stockpiles of high-capacity ammunition – good or bad – have a privacy right to carry them in public places undetected? Or do citizens have a right to be alerted by their iPhone when such a weapon comes within shooting range?
Why is it a 6-year-old child can pick up an iPhone and be prevented from accessing its contents because of a passcode, but that same child can pick up a gun and shoot his 3-year-old brother in the face and kill him by accident?
If a judge can order Apple to create software that can unlock phones that are now impenetrable, why can’t Congress order gun makers to lock their guns?
Smart technology is available that would significantly reduce the number of gun deaths in this country. Just as your fingerprint can be used to unlock your precious phone, guns have the capacity for technology that would only allow them to fire only when activated by an authorized user.
People who are too dangerous to fly in America can still buy guns in America, and more people are killed by gun violence in this country than any other society in the developed world. The justice system has a legitimate argument that some privacy rights have to be given up for the sake of security, so let’s stop protecting the privacy of people who shoot and kill others with guns.
Let’s stop pretending we can’t make guns more safe using technology or make communities safer tracking deadly weapons.
Cynthia Dill is a civil rights lawyer and former state senator. She can be contacted at: