The Pendulum’s Swing Back to Privacy is Just Getting Started

Paula Musich
Paula Musich

Summary Bullets:

  • The growing use of encryption, especially in smartphones, gives privacy controls back to end users, much to law enforcement’s chagrin.
  • The backlash against government snooping is just getting started, and it will only get louder with time and a potential defining event that will spur widespread calls for reform.

The government met last month with Apple executives to talk about the new encryption technology used in Apple IOS 8 and now Google’s Android Lollipop release that can block government access to information on smartphones, even if law enforcement has a court order. IOS 8 encrypts all data on the device and passcode protects it. Data can’t be accessed without the passcode, which Apple does not have access to. The Justice Department, FBI, NSA and others are demanding access; the industry is saying customers demand their privacy. Who’s right? The widely used WhatsApp chat service also just significantly upgraded its encryption. I think the government over-reached (especially with the NSA’s Prism program) and failed to understand the gathering backlash created by the Snowden leaks, and the high tech industry, including Apple, is seeing a negative impact on business as a result of lost customer trust.

The WSJ on November 19 revealed parts of the conversation between Apple execs and a high ranking Justice Department official, who said “’a child will die’” because police won’t be able to search a suspect’s cell phone. Apple is right: the dead child scenario presented by the Justice Department is just plain inflammatory. It’s also desperate. I think they know that public backlash is building, and calls for reform will only get louder. Apple CEO Tim Cook predicted that some undefined event will occur that will cause citizens to demand a change in the laws to better protect their privacy. At the same time, other smartphone providers, especially those that have a significant sales presence overseas, will likely adopt the encryption technology. Already big Internet-based businesses such as Yahoo, Facebook and Google have increased their use of encryption (HTTPS), and AT&T this month challenged the legal framework that allows the government to request cell phone location information from carriers, using a more lenient legal framework than standard warrants.

No laws have changed as a result of the recent disclosures regarding the extent to which the government snoops on not only its own citizens but those of other countries, nor has the government changed any policies — yet. To say that the pendulum has swung too far in the direction of protecting privacy, as FBI Director James Comey said, is disingenuous at best.

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