In the iPhone Debate, Let’s Get the Framing Right

Is your phone part of your home or part of your head?

Earlier this month at SXSW, President Obama made the Fourth Amendment argument for mobile phone searches:

You cannot take an absolutist view on [strong encryption]. So if your argument is strong encryption no matter what … I do not think [that argument] strikes the balances we’ve struck for 200 or 300 years and it’s fetishizing our phones above every other value.

So, under appropriate due process, law enforcement can, as the President argues, “rifle through your underwear drawer to see if there’s any evidence of wrongdoing.” His frame is that your phone is an object in your home and, therefore, governed by Fourth Amendment search and seizure law. Obama’s frame makes sense given the balance we’ve struck between personal liberty and national security for the last 240 years.

There is, however, a more private place than your home — your head. The government can’t rifle through your thoughts without your permission. It can only access them through a rather unpleasant process of interrogation (occasionally enhanced), coercion, perjury laws, and court orders.

Tim Cook, Apple’s CEO, takes this latter frame that your iPhone isn’t an object in your home but an extension of your mind. As Cook has said, the iPhone “encrypts data in a way that not even the iPhone itself can read without the user’s passcode.” All of the iPhone’s data is dependent on a single thought in the owner’s head — the passcode.

This framing makes some sense since we’ve been outsourcing tasks to our smart phones for more than a decade. They hold the intimate details of where we’ve been, what we’ve done, with whom we’ve communicated, what we’ve searched, and even what we know (don’t tell my father, but I don’t know his phone number anymore). Should the government be able to rifle through our minds as easily as it can rifle through our underwear drawers? I’d posit that Cook would say no.

What’s more, given advances in augmented reality, phones will continue to shrink until they can be slotted into our heads or injected into our necks. Our private headspace is also shrinking with better lie detection technology and efforts to read our thoughts directly. This iPhone debate, like the crypto wars of the 1990’s, is a struggle for the ultimate private space between our earlobes.

During the recent iPhone debate, there have been several key escrow-ish proposals to access the encrypted information on phones. Similar distributed key algorithms have been used for block chain payments like Bitcoin, court-ordered asset unlocking, and even voting. All of these algorithms require that, Dr. Strangelove style, some threshold of parties turn their keys to access the information. Your consent may or may not be required.

But the operative question is not one of technology but one of policy: should the government be able to get into your head without your consent? If law enforcement is allowed to empty your phone without consent, how long before they’ll be able to similarly empty your mind?

This debate isn’t about Silicon Valley versus Washington or math versus politics. It’s whether these very personal devices are part of our heads or part of our homes. Once that’s decided, the cultural values embodied in our law will take care of the rest.

This post also appeared on LinkedIn.