Apple vs FBI: Does the Government Have the Authority to Grant Itself Absolute Power?

| Editorial

There has been much discussion about the legal case between Apple and the FBI. I won't go into reference detail because it's all over the Internet. But I do want to write a few words about the origin of this conflict from a larger perspective. It's a discussion that's been heavily on my mind.

My life experiences bring me to ponder the underlying issue of whether the U.S. Constitution affords the federal government the authority to grant itself absolute power in this case.

Image credit: Shutterstock.

At issue is whether the encryption we use in our smartphones to protect banking, private conversations, photos of our children (and their locations), credit card numbers and transactions, health data—all that private information that Tim Cook talks about as resident on our iPhone—has a right to absolute privacy.

The Larger Question

While each side in this case believes it is taking the best possible stand, the only real resolution can come from an understanding what led to the U.S. Constitution and Bill of Rights.

Those origins came from the Founding Fathers who were uncomfortably familiar with prior kings and queens of England who granted themselves absolute power by virtue of being wrapped in the authority of God. Under that line of thinking, the British monarch was selected by God and acted with the authority of God. There was no earthly recourse to the dictates of the monarchy.

Recently, I taught a class about William Tyndale who was strangled in 1536 at the stake, then burned for translating the Bible into English (from Hebrew and Greek). Other examples of absolute religious tyranny are, of course, too numerous to mention here.

The Founding Fathers

The American Founding Fathers had quite enough of this kind of thing.

While they could never have conceived of a modern iPhone, they accomplished several important things. They separated the Church's authority from the State so that the State could not invoke absolute godly powers. And then, in the language of the Constitution and the Bill of Rights, they placed restrictions everywhere one looks on the powers of the federal government. The three branches of government were an additional measure to make sure that no one entity could seize absolute power.

When we hear arguments that support the FBI in this case, we hear the terms "going dark," and "warrant-proof." The Justice Dept and the FBI claim, with no great appreciation by the Dept. of Defense, that when it comes to law enforcement, lawful warrants grant absolute authority to inspect any smartphone-even if the technical measures used to do that place millions of other citizens at risk.

An Applicable Precedent

I can think of an interesting precedent. Back during Prohibition (1920-1933) the 18th Amendment to the Constitution, which was passed by the people, prohibited the sale, production and transportation of alcoholic beverages. One of my distant relatives was a sheriff at the time and actually put people in jail for making alcohol in their homes. The 21st Amendment, also passed by the people, declared that the government would no longer have the authority previously bestowed. This was a case of power being bestowed upon and taken away from the federal government by the people.

One of the reasons Apple wants this case resolved by the U.S. Congress and applicable law is that it is ultimately about citizens making a decision about how much power they wish to grant their government. That's what the founding fathers envisioned as the purpose of the Constitution.

If, for the safety, security, privacy and well-being of hundreds of millions of citizens with smartphones, the people declare that the government does not have an absolute right to access any personal, encrypted electronic device, even in the name of fighting terrorism, then that view must be expressed by the selection of and interaction with elected representatives. This must be the will of the people.

If the people don't make a positive declaration of what powers a government can grant itself, then the government, like any worldly king in a political vacuum, will simply fight for and then grant itself absolute power.

History demonstrates this always happens unless the people exert their will.

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Terry Maraccini

The government has no absolute power over anything. Americans need to remember this when the terrorism paranoia rhetoric dies down.

this is not a security issue. This is the FBI encroaching on your privacy and civil rights. They’ve been at it for 90 years.


A couple of points:

While on paper (the Constitution) the government does not have and cannot grant itself absolute power, it has happened repeatedly. The internment of Japanese citizens during World War Two, Suspension of Habeas Corpus by Lincoln during the Civil War, W Bush and Nixon both believing that the President cannot violate the law because whatever he decides to do is by definition legal because he’s the President. There is a long list of times when the government assumed powers that it in fact has no right to.

Many of the people in high positions now worked under, studied under, or were familiar with Judge Bork. One of the reasons he was rejected for the Supreme Court was when he stated that while privacy was valuable, he saw no evidence that it was a protected or even an implied right anywhere in the Constitution. Personally I believe every amendment in the Bill of Rights is based ultimately on a fundamental recognition of a rock solid right to privacy but there are a lot of powerful people that just don’t see it that way. They are now highly placed throughout the DOJ.


Interesting stuff.  Of course the UK Monarch (we haven’t had a Queen of England since 1707) is a pretty powerless figurehead these days.  For them the rot started well before the US Constitution was written. Notable times when the power of the monarchy was reduced are: 1215 The Magna Carta; English Civil War 1642; The Restoration of Charles II 1660; William III, can’t remember when - but his ascendancy was known as the Glorious Revolution and the Reform Act of 1832.  So it’s been a gradual process and, as is well known, imposing limits on the Monarch’s authority and religious freedoms very often went hand in hand.
Even after all this there was no explicit right to privacy in English Common Law until the European Commission on Human Rights took matters into their own hands which resulted in the 1998 Human Rights Act. More recently the right to privacy has come sharply into focus with the shenanigans of journalists employed under the watchful eye of Rupert Murdoch. Those shenanigans involved the hacking of a murdered girl’s cellphone (strictly speaking - her voicemail messages).

I’m a strong believer in the will of the people. Every few years we have a General Election. If enough people don’t like the Government we vote them out - and vote in a different lot of politicians who we also don’t like after about 6 months. It’s a good system in which the Monarch plays virtually no part at all which means the Queen is the only person that most of us like.

Lee Dronick

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