Last week, a federal magistrate ordered Apple to create a back door into the iPhone and thus set the stage for the biggest and most important public debate about privacy and security in this new technological era. Those in favor of breaking encryption when it’s in the public interest are our government and its law enforcement agencies. Arguing against government intrusion into our digital freedoms are tech companies and civil liberties groups.
Apple CEO Tim Cook said that “this moment calls for public discussion.” I agree. But it has to be the right one. We cannot rely on lawsuits to trigger debate retroactively. Nor can we wait for a court’s decision to decide technology’s future place in our society. We must plan in earnest right now, together, for the good of everyone.
This is an issue that extends far beyond Apple and the FBI. Today, we are arguing over an iPhone, and whether or not the government can compel a tech company to help it break into a device. Tomorrow’s problems will be far more complex, involving science and technology the likes of which you’ve only ever read about in sci-fi books.
If anything, the case pitting the government against Apple only illustrates the dire situation we now find ourselves in: the pace of scientific and technological change has surpassed our legal frameworks, our laws and the people charged with making decisions that affect us all.
Elected officials don’t have the answers
We ought to be discussing these technologies before there’s a tragedy–or an election year–forcing the debate into a courtroom. But who among our elected officials is in a position to have that conversation? Of the 535 senators and representatives in the 114th Congress, only two hold doctorates in the natural and hard sciences. There is one physicist, one microbiologist, one chemist and eight engineers spread across the House and Senate. Back in 2008, former Rep. Rush Holt, D-New Jersey, told The New York Times that while there are 435 people in the House, “420 don’t know much about science and choose not to.”
Our elected officials’ lack of experience with technology resulted in a similarly raucous debate that year: whether or not electronic voting machines should be used. Arguing whether or not a technology should be implemented after the fact is a waste of time. Especially since, as Holt put it, the potential glitches “would [have been] obvious to any computer scientist but went right past some people here in Congress.”
A Ph.D. in the hard sciences shouldn’t be a requirement to hold elected office in America. However, those responsible for making and enforcing our laws ought to concern themselves with tech that’s over the horizon, especially since technology now intersects with every facet of our daily lives.
Years ago, the now-shuttered Office of Technology Assessment was charged with researching, forecasting and advising Congress on matters of emerging technology. During its existence, the OTA released more than 750 prescient studies ranging from robots in the workplace, to bioterrorism, to acid rain and climate change. Without the OTA in place, the Republican-led Congress, under Newt Gingrich, was free to bring in its own lobbyists, think tanks and interest groups to weigh in on important emerging science and technology issues. Gingrich defunded the OTA in 1995, and it was a mistake.
Aside from the Defense Advanced Research Projects Agency (DARPA), which is a military research-and-development division, and IARPA, which is part of the Office of the Director of National Intelligence, the only agency left now to investigate emerging science and technology is the Congressional Research Service, which is a century-old division of the Library of Congress. However, its primary concern is research and analysis on existing policies and proposed legislation. There is no agency looking ahead into the future.
Without an unbiased arm of Congress left to evaluate the meaning of emerging science and technology, we have abdicated our future to a motley crew of interest groups, law enforcement agencies, elected officials and CEOs. It’s a terrifying prospect.
It’s precisely that lack of planning and foresight that enabled the blowup involving Apple and the FBI. Because there are no other legal frameworks to use, the government is citing an ancient and obscure law called the All Writs Act, which was originally passed in 1789. For context, that was the year that Thomas Jefferson was appointed our first-ever secretary of state and the cutting-edge technology he employed in office was a quill and parchment.
Think big
If you think we’ve reached the zenith of this debate now that Apple and the FBI are in court, you’re not thinking big enough.
For example, if you use an iPhone 6, you probably unlock it using your fingerprint. If you have an arrest record, a law enforcement agency already has your fingerprints. It wouldn’t be difficult to transfer them on to a model to unlock the data on your seized phone. However, in this case, who technically owns the right to your fingerprint? Once your biometric data is in a government database, does the FBI have the legal clearance to use it to unlock any of your devices? Right now, there is no clear answer.
What happens if someone sexually abuses another person in a virtual world? When you’re wired in to a virtual-reality experience, studies have shown that our actual sense of reality is distorted. (I have ample experience using VR, and I agree.) When something happens in a virtual world, that visceral experience is encoded in our memories as if it actually happened. There are federal laws explicitly prohibiting sexual assault, but what happens when the attack occurs between two players in a virtual reality game?
What happens in the future, when your encrypted technology goes rogue? In fact, that has already happened. The Random Darknet Shopper, an art project and bot, was programmed to make a random Internet purchase every day using bitcoins. Once, it bought 10 ecstasy pills and a fake Hungarian passport.. Who’s at fault, the coder or the technology? Again, we don’t have any laws covering bots written by humans. Indeed, our lawmakers haven’t even had the necessary conversations about our impending bot-assisted society.
iPhone encryption may be an easier issue
Relatively speaking, encryption is much less confounding than the other emerging technologies of our near future. CRISPR-Cas9 is a gene-editing technique allowing scientists to redesign precise positions on DNA using a bacterial enzyme. It can be used to edit mosquitoes so that they no longer carry malaria but, as we’ve seen in a recent paper published by Chinese researchers — it can also be used to edit human embryos. What happens when divorced, acrimonious parents want to sue over the rights to edit their children’s DNA?
Did you know that in a handful of labs, researchers are testing systems that allow monkeys to send their thoughts to each other over the Internet? Or that in one experiment, a monkey was able to control the arm of another monkey who wasn’t even in the same room? That technology will someday help stroke victims learn to walk again. And it could also be weaponized, giving soldiers superhuman powers. Inevitably, lawmakers are going to get involved, and that debate is going to make us long for the days when we bickered about iPhone encryption.
This is certainly not an argument for more government regulation. It is also not a free pass for tech companies to ignore the fact that humans use their devices, and we have a track record of being horrible to each other.
Instead, it is a call for our lawmakers to acknowledge that the future is coming and to depoliticize the technology that’s on our horizon. Like it or not, they must play an informed, active role in how technology intersects with American society. That cannot mean leaving that research to outside interest groups, or passing off that responsibility to young, “connected” staffers who know how to Snapchat.
We cannot be in reactive mode all the time. Our strongest option is to reinstate the OTA, and to do it now. Short of that, the best choice is for lawmakers and law enforcement agencies to seek out highly qualified, nonpartisan scientists and technologists who seek nothing in return, aside from their having their voices heard. Listen to what they have to say and act on their advice. Empower them to help us make better decisions for our future, here in the present.
Note: An earlier version incorrectly described IARPA as a military agency.