“Free Speech” is a monthly column by Chris Finan, director of the American Booksellers for Free Expression (ABFE), that shares his personal thoughts and opinions on a broad range of free expression issues; the views expressed do not necessarily reflect those of the American Booksellers Association. Finan welcomes comments and suggestions at email@example.com.
I am not an Appleholic.
So I have to admit that I am a little biased regarding the merits of Apple’s decision not to help the FBI gain access to the contents of the iPhone that was used by one of the terrorists who killed 14 people in San Bernardino, California. A judge has ordered Apple to cooperate, but the company is challenging the order in court.
In the past, the American Booksellers Association has taken a strong stand on the issue of customer privacy. We fought Kenneth Starr’s effort to force Kramerbooks, in Washington, D.C., to turn over Monica Lewinsky’s book purchase records.
We supported Denver’s Tattered Cover Book Store when it filed a lawsuit challenging a search warrant that sought information about the books bought by the suspect in a drug investigation.
ABA has been a leader in the campaign to restore the protections for reader privacy that were eliminated by the USA Patriot Act.
Reader privacy is not directly at issue in the Apple case. However, our history gives us some perspective on the conflict.
The first thing in the Apple case that sounded familiar was the insistence by FBI Director James Comey that businesses have no right to protect the privacy of customer records when the government needs them. It is the kind of sweeping claim that Kenneth Starr made when he issued a subpoena for all of Lewinsky’s purchases from Kramerbooks and a Barnes & Noble store in Georgetown. He wanted to know the title of every book she bought.
In its latest brief in the Apple case, the Justice Department argued that government alone should decide how to balance privacy and security. “The rule of law does not repose that power in a single corporation, no matter how successful it has been in selling its products,” it said.
That was certainly where things stood in 1998, when Starr issued his subpoena. ABA’s lawyers said there was no precedent for challenging a subpoena to a bookstore on First Amendment grounds. However, ABA believes that there is great danger in allowing the government to conduct fishing expeditions in bookstore and library records.
Kramerbooks went to court with strong financial support from ABA and argued that the subpoena was so broad that it would make customers think twice before buying books that the government might consider suspicious. The judge agreed and was preparing to decide what books were relevant to Starr’s investigation when Lewinsky decided to turn over her records in exchange for immunity from prosecution.
Not long after the Kramerbooks case was resolved, police served a search warrant on Joyce Meskis, the owner of Tattered Cover. They were seeking the titles of books that a drug suspect had recently purchased from the store. In this case, too, the judge ruled that the warrant was too broad. However, he did not narrow it enough. Meskis appealed, and two years later the Colorado Supreme Court issued a unanimous opinion quashing the warrant.
Businesses have played a crucial role in protecting the privacy of customer information in these cases and in several challenges to National Security Letters issued by the FBI following passage of the Patriot Act. So it is not surprising that government officials are complaining. We are making them prove that incursions on privacy are justified.
The Apple case does raise a novel issue. The Justice Department says it wants to gain access to a single phone that was used by a man who committed mass murder. But Apple insists that it cannot give the government what it wants without creating a software key that other prosecutors will want to use in their criminal investigations. They argue that foreign governments will want it to decrypt the phones of human rights activists and that hackers will attempt to steal it, undermining the security of everyone who uses the Internet.
This argument suggests that in order to protect the security of all it is necessary to allow the creation of places that the government cannot penetrate. President Obama described the dilemma recently. “If, technologically, it is possible to make an impenetrable device or system, where the encryption is so strong that there is no key, there is no door at all, then how do we apprehend the child pornographer?” he asked. “How do we disrupt a terrorist plot?”
The latest news is that the Justice Department may have found a way to access the iPhone of the terrorist without Apple’s help. A hearing in the case has been postponed while it pursues the new approach.
But even if this case is resolved, we will have to address the issue again soon. Apple intends to strengthen encryption on its phones to a point where even it can’t crack them. It is unlikely that the government will allow this, leaving Congress with the task of finding a compromise that recognizes the legitimate needs of law enforcement while respecting the need to protect privacy.
In the meantime, we should be grateful to Apple for raising a very important issue in a case that presents extremely difficult facts.