The FBI has hacked into the San Bernadino phone and dropped its case against Apple, which may seem like a tidy resolution—but the truth is it does nothing to resolve the larger issues raised in the case. Device security and encryption will grow increasingly sophisticated, placing more data beyond the reach of search warrants. And law enforcement will still face what it calls the “going dark” problem—when it has the legal right to view communications but lacks the technical ability to do it.
More than four decades ago, economist Arthur Okun penned his influential tome Equality and Efficiency: The Big Tradeoff. In it he describes the uneasy compromises of the American social system as we reconcile important but fundamentally incompatible values. The big trade-off of the title refers to the way we find balance by alternating the priorities of, say, the security of our information systems and the effectiveness of law enforcement, sacrificing the ideal of either in an effort to preserve a bit of both.
Apple vs. the FBI presents just such a trade-off. We can promote maximally secure information technology systems and pay some real costs in terms of how effective law enforcement can be. Or we can promote maximally efficient law enforcement and pay some real costs in the potential compromise to our information systems. Neither scenario offers the ideal—but as Okun noted, when faced with irreconcilable values, the American system is designed to continually refine the balance.
Making trade-offs is crucial. The future won’t be won by ideologues who speak in absolutes. Instead, we need reasonable people willing to honestly confront the downsides of every choice. Such complicated matters won’t be settled by any individual court case or piece of legislation. Instead, the issues will be continually challenged and refined over time.
Despite the prevailing winner-take-all rhetoric, it’s possible to create meaningful legislation that’s both modest and flexible. Rather than broad edicts about what must be accessible to law enforcement, Congress can set forth the factors that courts should consider when determining if a company should be compelled to provide a particular type of assistance and expressly limit what the government may request.
Any legislation would provide a mere baseline. The courts have the power to make fact-specific determinations as technology evolves—for example, relying on expert testimony to determine the feasibility of outside methods or the obligations to exhaust alternatives. The courts will also determine matters related to the overall equilibrium, such as whether individuals, under the Fifth Amendment, can be compelled to input a password or decrypt data.
The proliferation and creation of new types of technologies will continue to reset the balance. Law enforcement may discover new tools—as it has in California—and market forces or the emergent Internet of things may limit and compensate for information loss. The balance will be further refined through voluntary coӧperation of private companies that are dealing with the expectations of customers—who will somehow want the companies to help law enforcement and also protect their data.
Any choice we make poses risks. We can’t delude ourselves into believing otherwise. But the future won’t be shaped by any one big trade-off—only many small ones.
Susan Hennessey is a fellow in National Security in Governance Studies at the Brookings Institution and the managing editor of the Lawfare blog, which addresses national security issues.
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