Godwin's law. Conceived by Mike Godwin, the adage says if an online discussion goes on long enough, the chance that someone compares something or someone to Hitler or Nazis approaches zero. An extension of Godwin's law, supposedly printed by The Economist in 2007, is that the first person to call the other a Nazi in an argument loses.
There should be a corollary involving law enforcement, any government, spy agencies, and politicians: when they argue for a reduction in privacy or civil rights for the sake of the children, they have lost that argument. At the very least, they've lost all philosophical standing.
But that's what's been happening—again—in the last few weeks. First we had FBI Director James Comey saying, "I am a huge believer in the rule of law. But I am also a believer that no one in this country is above the law. What concerns me about this is companies marketing something expressly to allow people to place themselves above the law."
He later added, "The notion that someone would market a closet that could never be opened – even if it involves a case involving a child kidnapper and a court order – to me does not make any sense."
On Wednesday, The Wall Street Journal reported that the U.S. Department of Justice's (DOJ) number two official, Deputy Attorney General James Cole sounded a note in the chord. Citing unnamed sources who were at a meeting between Mr. Cole and Apple executives, The Journal reported that Mr. Cole told Apple that there would come a time when a child would die and that police would argue they could have rescued the child or caught the killer if only they could looked inside an encrypted phone.
There were no quotes from this meeting used in the story, but The Journal also reported that Apple called the DOJ's position inflammatory and inaccurate. The Apple execs also noted that the FBI has other ways of getting information, including using carrier logs and cell tower data.
It's hard to know if Messrs. Comey and Cole are being cynical or are honestly oblivious to the reality that protection from law enforcement warrants is a necessary side effect of data protection from anyone. I suspect cynical, because we've been through this before.
In the 1990s, for instance, there was a battle between technology firms and the government called the Crypto Wars. The Clinton Administration argued that then-new encryption technologies, including PGP, should have a backdoor in them for the government to use.
It was the same old argument. The government/law enforcement/spy agencies need access to all the stuff or else bad things will happen. Which is true. Bad things will happen. It sucks, but that is one of the prices of living in a free society. We can not be protected from all harm at all times and also have liberty, privacy, and civil rights.
The government lost the Crypto Wars, and it will lose this battle, too. Philosophically, the government lost the second Mr. Comey invoked a kidnapping and Mr. Cole invoked the death of a child.
More practically, Apple and Google have both brought device-level encryption to market that protects our phones against everyone, both the good guys and the bad. In an era when organized crime grows ever more brazen and ever more rich from profiting off of stealing our identities, our bank account info, and our credit cards, the FBI and the DOJ should be the last forces on earth arguing for anything other than the tightest security on our personal devices.
And the reality is that law enforcement (et al) will find new ways to fight crime and protect national security, and they will continue using a variety of established ways of doing so, too. Encrypted smartphones are one tiny aspect of the pie we call life, and having them be secure tilts the balance towards ordinary people, not towards the criminals. Any argument to the contrary is disingenuous and not rooted in reality.