What Apple got right but Amazon is getting wrong

Jeff Bezos
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Jeff Bezos

Law and technology frequently operate at cross purposes. Take, for example, our embrace of electronic devices as our closest companions and most trusted confidantes. To law enforcement officers and agencies, that makes them valuable sources of evidence. 2016 opened with a high-profile device-related dispute between Apple and the FBI; it closed with one pitting Amazon against a local police department. And though the stakes were far higher in the Apple case, when it comes to headline principles, Apple's refusal to cooperate got public policy right; if Amazon sticks to its guns it will get public policy wrong.

In Apple's case, the stakes were particularly high. The FBI believed that an iPhone belonging to Syed Farook—one of the radical Islamic terrorists responsible for the San Bernadino massacre—might reveal useful information about other terrorists planning additional attacks. Unfortunately, Farook—like most people—had password protected his iPhone.

Because Apple had equipped all iPhones with a privacy-protecting algorithm that wiped their memories clean if too many incorrect passwords were entered, any FBI attempt to secure Farook's data posed a risk of destroying it, instead. So the FBI tried to force Apple to develop a new "backdoor" technology to make the data accessible. Apple refused.

The matter implicating Amazon's Echo is prosaic, by comparison. While investigating a homicide committed in a private home in Bentonville, Arkansas, the police noticed that the homeowner—and prime suspect—was something of an electronics junkie. Among his devices was an Amazon Echo, an "always listening" device that, when triggered, records ambient sound and stores the recording on Amazon's cloud. The police thought that selected recordings might help fill some gaps in their investigation. Amazon refused to hand them over.

The information available about the Bentonville case suggests two distinct problems. The police request may be overbroad, in which case Amazon is fully justified in refusing to comply until it is narrowed. But Amazon is also reportedly standing on principle, claiming that the privacy rights of Echo users would justify its refusal to comply even with an appropriately tailored warrant.

The difference in the principles at stake explains why Apple was right in refusing to help the FBI save lives from a potential, imminent terrorist attack, while Amazon's refusal to help clear an isolated crime whose victim is already dead is a mistake.

"The difference in the principles at stake explains why Apple was right in refusing to help the FBI save lives from a potential, imminent terrorist attack, while Amazon's refusal to help clear an isolated crime whose victim is already dead is a mistake."

The FBI attempted to seize control of a team of Apple's engineers—the tech-sector's dominant "mode of production." Their motivation was sound—preventing further terror attacks on Americans—but their demand was unreasonable. American capitalism respects and protects private ownership of the modes of production. Commandeering an Apple engineering team is no different from seizing a manufacturing plant—not because the owner did anything wrong, but rather to serve some purpose deemed critical to the national interest.

The schools of economic organization under which such seizures are acceptable—even encouraged—are not approaches that we should want to adopt. There have been countries that maintained the illusion of private ownership of productive assets, but in reality only let private parties operate those facilities for the benefit of "the nation." When their governments decided that "the nation" needed to divert their use, the collective good compelled their diversion, and the private "owners" were required to comply.

The technical name for such an organization of a nation's industry is national socialism; it helped Mussolini get the trains to run on time and it allowed Hitler to rescue the basket case of an economy he inherited from the Weimar Republic. History has shown, however, that is also has a terrible dark side. When the government is empowered to commandeer and redirect private resources in the name of the common good, freedom and human rights suffer greatly. As unobjectionable—and even laudable—as the FBI's request may have been, it is inconsistent with the cause of freedom.

The Bentonville police, on the other hand, are simply asking Amazon to turn over data already in Amazon's possession. Amazon's refusal rests upon its desire to protect its customer's privacy—both as a matter of principle and as a matter of sound business practice. Requests of this sort are hardly unusual. They arise, for example, whenever the police ask a bank to open a safety deposit box.

Obviously, it infringes the holder's privacy rights—but were the police never allowed to open these boxes, they would soon overflow with physical evidence of significant crimes. American courts have considerable experience balancing these concerns on a case-by-case basis. If the Bentonville courts decide that disclosure is warranted here, Amazon should comply.

The conflict between technology and law is likely to be a defining feature of the twenty-first century. If we are to remain a free society, we must apply the right principles to the resolution of all such conflicts.

Commentary by Bruce Abramson, Ph.D., J.D., a technology lawyer and expert witness in private practice. He is the author of Digital Phoenix (MIT Press) and The Secret Circuit (Rowman & Littlefield), and numerous articles on the interplay among technology, business, law and public policy. He is also a senior fellow at the London Center for Policy Research, and director of policy at the Iron Dome Alliance. Follow him on Twitter @bdabramson.

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