Private Actors, Corporate Data and National Security: What Assistance Do Tech Companies Owe Law Enforcement?

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iPhone of one of the San Bernardino shooters. That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone, but the issue remains unresolved. Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers’ information, effectively locking law enforcement out of accounts and devices, even when armed with a search warrant. Most privacy watchdogs, understandably shaken by Edward Snowden’s revelations of NSA spying, argue that this is an unadulterated good. The prosecutorial view is that this is an unprecedented interference with lawful investigations. There is no question that the companies fashioning themselves as champions of privacy benefit financially from this position. Apple has openly admitted in court filings that complying with court orders to assist in the execution of search warrants could “substantially tarnish Apple’s brand.” But while Apple may bear some responsibility for creating a system that it could not access itself, does that mean they should be statutorily tasked with undoing it? Current statutory law, in particular the Communications Assistance for Law Enforcement Act (CALEA), does not cover the encrypted information on physical devices, or information companies’ responsibilities to decrypt it. This Essay takes the question of whether CALEA should be amended as a starting point for a broader exploration of what assistance the government can justly ask of its citizens. There are strong arguments to be made that such obligations would not be reasonable, or that there should be a zone of privacy that the government cannot access. This would support a system in which some warrants are ineffectual. But if the functional impossibility of execution of these warrants is just the byproduct of a corporate strategy, “them’s the breaks” seems like an insufficient justification