Burn the house down to roast the pig.

You may have woken up this morning to find the continued debate between the FBI and Apple over a phone owned by a terrorist. You may also have seen that 51% of Americans side with the FBI — a word of caution, this debate demands more understanding than a boiled down statistic for the morning news roundtable.

So what is this about?

The crux of the argument is the iPhone 5C used by Syed Rizwan Farook and a law from 1789 called the All Writs Act, and this is where the argument starts to break down. The age of the law isn’t really the issue here, as a country, there are many laws we hold dear (constitutional and otherwise) that are hundreds of years old but still capture the spirit of what we are trying to do here. Instead the break down is over nuance, understood or otherwise. The All Writs Act reads that companies must assist law enforcement in court-ordered investigations, which Apple has done by giving the DOJ and FBI access to the iCloud account and the iTunes account both of which stopped taking back-ups 8 weeks before the attacks. What the FBI wants now is access to the phone that has been encrypted and in a post-Snowden world that encryption is very difficult to bypass without assistance which is where Apple comes back in.

The FBI has requested that Apple construct a key to match the lock of encryption on these phones in order for them to gain access to Farook’s phone and see if there is any information they could use to stop other attacks.

Seems absolutely reasonable, right?

This is THE debate and in my mind has a couple parts. First, for well over a decade the government collected data on the people of the United States under the Patriot Act and during that time this sort of problem would not have been an issue in the Farook case. Which means when Edward Snowden blows the whistle not only do the American people take umbrage, so do companies like Google, Facebook, and Apple as they felt they were used as pawns in a game they were not aware they were playing a part in.

This encryption is one of the outcomes of that discovery which brings us to the next point. Farook’s phone was the property of his company who did not install any software on it so that they could retrieve the information in the event that it was needed. The past two companies I worked for, both that their own “corporate users” on the phone which would allow them access. The company that Syed Farook worked for did not, which would have stopped the debate in its tracks. They did not, so we press on.

Now we are at a crossroads where the FBI wants Apple to build, not a backdoor as media pundits might call it, but a front door to access this onephone in an isolated case. In the tech world the wound is still pretty raw after Snowden so the backlash is understood and expected.

But for some context, in hacking a backdoor is access that would not require working around a password or encryption you would just have access to the phone regardless of the level of protection. A front door would more closely mirror a skeleton key where you could open any phone with any password in the Apple fleet.

This is where I start to question the direction here. At its face, this case is about two things. First, see if there is any information that could help in future attacks in order to stop or minimize American casualties. Second, and perhaps more telling, is the need to understand why we could not pick this bad actor out before the attacks. What is interesting is the same methodology is not being used in the attack on Kalamazoo when the need to determine if someone is going to do this, before they do it, is equally important. However, I don’t believe that living in Minority Report, regardless of race, is the type of state we would like to live in.

Getting back to the All Writs Act one has to consider the interpretation in this case that assumes the company not only comply with the request but use resources to assist the case. A seemingly dangerous precedent to set asHerb Lin puts it:

I do worry that the interpretation of the law apparently accepted by the magistrate is that the law can be used to compel any private party to expend resources?—?time, personnel, and money?—?to serve state interests. If that’s so, what are the limits on its scope of applicability? Can the government use the statute to demand that I build a jail for it?

Another limit to the All Writs Act? Well, the act of writing code might be, in fact, speech and therefore protected. Andrew Keane Woods breaks it down like this:

The lock-swapping mechanism required in this case would require Apple’s engineers to sit down at a computer and start writing. And that action, as courts recognized long ago, is speech. In Bernstein v. Department of Justice, the Electronic Frontier Foundation successfully argued that Daniel J. Bernstein, then a graduate student at Berkeley, had a constitutionally protected right to publish his source code, despite the government’s efforts to block it.

As this is fleshed out in the media you will hear a lot about how we are “going dark” which just means that in cases like this it is harder (not impossible) for law enforcement to do their job. As someone who lives in West Michigan, 45 minutes away from Kalamazoo, I can understand why we might leap to the conclusion that we have nothing to hide so let them see it all. In fact, this is my father’s point of view of which we argue about, a lot.

Privacy matters in this and many other cases and much like a democratic internet it comes with both good and bad actors that we have to deal with. Along with those decisions should be robust converations about what we want to share and what we want to protect. But there is no need to burn the house down to roast the pig.

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”