What did we learn from Elvis? The King of Rock ‘n Roll taught us that all the world is a stage and each must play a part. Elvis never had a cell phone and probably wasn’t worried much about what played on the world stage way back when.
Today, the world remains a stage and those with prominent parts could become Oscar nominees or victims of Rotten Tomatoes, all thanks to a perfect firestorm that is being played out this year.
The Players Are Many
The cast has assembled on the national stage, jockeying for position, and practicing their parts. On one side, there’s the U.S. government, intent upon keeping citizens safe by demanding access to the private information they are constitutionally bound to hold sacred and safe.
On the other side is a popular technology company which works to make customer information safe with products not easily accessed by government officials or other ne’er–do–wells (there may not be much difference). Yet, the company is under siege, attacked by those who seem more interested in power and control than safeguarding citizen’s rights.
Every stage play has various sub-plots and character interactions and this perfect firestorm is no exception with plenty of protagonists and antagonists. 2016 is an extraordinary election year and control of all three of the country’s three branches of government are at stake, including the judicial branch. Adding further intrigue, a Supreme Court justice died, leaving the court somewhat balanced between liberals and conservatives.
The country’s highest court, minus a conservative or liberal member who could tip the decision one way or another, may be required to adjudicate the growing conflict between the government and a popular technology company.
The ‘Free Speech’ Conflict
Apple is the company in the center of this perfect firestorm because iPhones come encrypted these days and that makes it difficult for the government to gain access to personal information. The government is using the All Writs Act from 1789 to force Apple to open the iPhone to government surveillance and access.
Once the precedent is set, and the All Writs Act has been used before, the government would be granted unfettered access to private information contained on our personal devices, and, as in the case with Apple, force the company to comply. I see a problem. The Electronic Frontier Foundation, through the Bernstein v. Department of Justice case, has established that an encryption algorithm– code– is speech. In lieu of the first amendment, how can the government compel Apple to create code– speech– that would open the encrypted iPhone?
I have no doubt this issue will wind its way through the courts and eventually land at the steps of the U.S. Supreme Court, and because of the timeliness of the issue and seriousness of the conflict, perhaps even this year, and probably right in the middle of the election process. This will be a battle between a conservative congress which demands adherence to the Constitution except when doing so is not beneficial to the party running congress. Meanwhile, a liberal president also has a constitutional requirement to appoint a replacement to the Supreme Court, the very same branch of the government which wishes to compel Apple to write code which will open a terrorist’s iPhone.
That Supreme Court may be called upon to settle the matter which embroils the government and Apple; a decision which may impact governments and many billions of smartphone owners throughout the world.
This conflict, the players involved, election year antics, code as speech, the First Amendment, and a Supreme Court vacancy and nomination fight represent a perfect firestorm which may not be settled until the election in November.