"There's already a door on that iPhone. We are asking Apple to take the vicious guard dog away and let us pick the lock,” said FBI Director Comey in his recent testimony before the Judiciary Committee. What would happen if the government mandated that we take away all the guard dogs in a neighborhoods and leave our homes vulnerable for others to ‘pick the lock’ and gain access to our homes?
As a former judge I have a problem with that premise. As the chairman of the House Subcommittee on Terrorism, I am as dedicated as anyone to national security and the mission of defeating the terrorists. I still believe that we can combat this threat without bending the rules written in the Constitution. The question is this: Must private industry be forced to create new software that can give the government access to a phone they would not have access to otherwise? I think the answer is no.
The truth is that Congress should have acted on this issue already and not waited for a terrorist attack. Hundreds of phones in the possession of investigators are sitting in limbo because the law is not clear. This will turn into thousands unless we act. It is the role of Congress to debate this and to change the policy, not the courts.
Since the San Bernardino attack, investigators have not been able to get into the phone of Syed Farook because of the security Apple has on all of its devices. In the wake of San Bernardino, law enforcement jobs are more challenging than ever as our enemies are more determined. As challenging as this is, a drastic, fear-driven policy that dramatically affects the privacy of every single American with an Apple product should not be made in the courts.
Before we mandate that the government must have a “key” for all encrypted data-- we must step back and consider what that means for privacy.
Congress has recently taken steps to protect the Fourth Amendment rights of Americans in the digital age; this decision does the opposite. This order in effect would give the government the keys to the backdoor to every cell phone in America. In order to do this, the government is attempting to force Apple and other companies to re-engineer all of their products in order to give the government the ability to access all phones.
This decision will not only violate the privacy of American citizens -- far more than just the owner of the iPhone the court ruled on-- it will also hurt American tech companies. American products will suffer on the world market because international consumers will know that their phones are not safe from the eyes of the snooping United States government.
My bill, H.R. 2233, End Warrantless Surveillance of Americans Act would specifically prohibit the government from either mandating (as they are trying to do with Apple) or even requesting that a back door be installed.
Congress should immediately act on this to make the law clear.
Throughout history, America has faced threats from a variety of enemies. During times of heightened fear, there have been similar calls for less privacy in the name of more security.
I believe there can be both.
Today the government once again asks us to just “trust” them with our privacy because the threat of Islamic extremism exists. They want a key to our email, a key to our phones, a key to virtually all elements of our life.
Should we trust the government not to abuse this power? We don’t give the government a spare key to our homes and our cars. Why should the laws that govern the digital world be any different?
These questions are difficult, but they are not new.
Technology has rapidly changed in recent years, and the question has been what will Congress do to protect privacy. The case of San Bernadino has demanded that we address that question. The law must keep up with technology. Our Constitutional rights depend on it.
Technology may change, but the Constitution does not. The Electronic Communications and Privacy Act (ECPA) is a perfect example. Under this law, authorities can search your electronic communications after 180 days without a warrant.
Today, with most of our data flowing through the cloud, our constitutional right to privacy is in jeopardy. Let’s not make the same mistake twice with encryption.
We can defeat the threat of Islamic extremism while keeping our Constitution whole at the same time. As Ben Franklin once said: “Those who Sacrifice Liberty for Security Deserve Neither”. And that’s just the way it is.
Republican Ted Poe represents Texas' Second District in the U.S. House of Representatives. He is a former judge and a senior member of the House Judiciary Committee.