Capone Would Have Loved My New Filing Cabinet

Criminals love it when we give them easy places to hide.

The issue now simmering between Apple and the FBI over access to a criminal's smart phone data is being framed as if this is brand new territory, and clearly in one respect that is correct - nobody had an Apple phone 10 years ago. From another perspective, however, we have already crossed this bridge many times before - there is more precedent to draw from than people may realize.

The reason Tim Cook has given for not helping investigators access data in this smart phone is essentially this: If Apple makes it so that the FBI can access this one phone, then it will be opening up Pandora's Box for them to access any phone in the future, compromising all of a person's private data.

Did people have private data 50 years ago? Of course they did. People 50 years ago had business letters, private notes, romantic correspondences, photographs, suggestive videos, legal records, evidence of illegal activity, ledgers, ghost ledgers to hide felonies in real ledgers, records of phone conversations, receipts, bills, etc. Everybody had a set of data which was personal and private, data which, if apprehended and scrutinized, would make any reasonable person uncomfortable. This is not even remotely new to our society.

What did people do with their files and data back then to secure them? Safes and banks were used, certainly, but also filing cabinets with a lock and key. It is likely that most people then kept every important piece of information regarding their private life - decades of it - in a locked filing cabinet. There were no clouds or databases or computers.

Has the essential content of our private lives changed? I understand that the containers holding the information about our private lives have changed and become more sophisticated, and indeed my life may be more complex because of technology, but do I carve out more of a personal, private life today than my grandfather did? Is it not the case that our computers and smart phones contain the same basic information, only in digital format?

Smart phones contain letters, private notes, romantic correspondences, photographs, suggestive videos, legal records, evidence of illegal activity, records of phone conversations, receipts, bills, and maybe even ledgers and ghost ledgers. In terms of personal data, in fact, the filing cabinets may contain more information, seeing that paper files accumulate for decades, whereas smart phones tend to be more transient, being replaced every few years.

When locking file cabinets were invented and everybody started using them, and the FBI began executing search warrants allowing them to seize all of those private details about somebody's entire life, did people protest and make signs saying, "Don't break into my filing cabinet!"? Did anybody worry about the slippery slope because, potentially, the government could come to our homes and take away our filing cabinets containing details about our whole lives?

Not really, no. I wonder why not? It isn't like people had all of their life in some other place like a cloud or database, obviously. Most people stored and locked their personal data in filing cabinets. Typically, my whole life would be there. Wouldn't that have been just as important to people then as smart phones are to people today? Why weren't we more nervous about the FBI seizing our filing cabinets?

The simple answer is that the FBI needs to follow due process - they need to exercise a search warrant to take my files. I'm not a criminal, so I never worry about this.

We can go back further in our history. During the century after the founders there were no filing cabinets with locks. Did any of the founders or their children have less of a private life because they had no filing cabinets or smart phones? They had tons of personal and private correspondence, they had ledgers and so forth, and to them, that was all of their life. Was their privacy less valuable somehow? Was it any different at all?

Thomas Jefferson lived a big life. I bet he had a means of securing his personal information, and probably there was a great deal he wanted to keep private. In his day, wouldn't his home be the container of his personal life, including all of the uncomfortable details? That is why the Constitution makes it clear: The government cannot enter a person's home without a search warrant; however, with a legal warrant, the government has every right and even a duty to enter a person's home.

Do you think people carried signs back then saying, "Don't break into our homes!"? Wouldn't it be just as intrusive, in Jefferson's day, to have the authorities enter and search his home, as it would be to have the authorities take my filing cabinets? The latter would not be more intrusive because filing cabinets happen to be better at holding all of our information in one place. Either way it is a person's whole private life - the only thing that changes is the container.

Jefferson was willing to live with that risk, as were our later fathers who used filing cabinets, even though they had a personal, private life full of data just as real and important to them as ours is to us. There is no essential difference.

If I invented a filing cabinet which only the owner could enter, so that if anybody else tried to enter, the cabinet would destroy the contents, would there be anything wrong with that? No - if somebody wants to destroy their data, they have every right. It is their data.

But what if criminals start using my filing cabinet? Wouldn't it be important for public safety for investigators and prosecutors to have access to those files? Would we want a society where every criminal, because my invention works so well, is hiding files forever beyond the reach of the law? Wouldn't that give criminals a big advantage?

If I, as the inventor, have the capacity to help investigators to get into a dangerous criminal's files, is it not my duty to do so under the Constitution, in order to execute a legal search warrant? More pointedly, if I refuse to help on the grounds that by helping them, they would then be able to get into anybody's files, am I not merely obstructing constitutional justice and putting society at risk?

I was alive back in the days of only filing cabinets, when smart phones and computers were fictions, so I have the advantage of having seen both sides. In terms of the physical technology, in terms of the containers, certainly we are in new territory. However, in terms of what comprises an individual's record of private life, in terms of what is being 'invaded' by investigators with warrants, there is no substantive difference. Data is still data, files are still files, and our whole lives are still our whole lives, no matter where we are storing the details.

For centuries we have recognized the necessity of government having full access to private property and private lives - that is why the Constitution prescribed we use search warrants. They should all be fully executed, according to the law.

Pandora's Box will open indeed if we grant absolutely safe haven to criminal activity. Tim Cook is attempting to establish a protocol by which sociopaths and other known dangers to our communities will be able to hide all of their tracks. This would certainly become a tool used by people to do vast harm and get away with it. How will we prosecute them without access to the evidence?

I understand that this feels like scary, new territory. But, in my opinion, people should relax and cooperate with constitutional law and federal investigators who are fighting an important war against terrorism and crime. The investigators are probably not our enemies unless we have broken the law, but the criminals surely are our enemies - we have recognized this for over 200 years. This issue has long been settled.