Establish an International Precedent for Sharing Encrypted Data

People and companies don’t get to choose when to obey the law. If a company is served with a lawful order to assist with an ongoing criminal investigation and it is possible for that company to assist, it has to comply. Apple was served a warrant. If it can comply, it has to service the warrant. If it can’t comply, it can ask a judge to vacate the warrant.

Apple says it can’t open the iPhone’s encrypted passcode. If this is true, they are off the hook, but if they can build the technology to comply (or already have), they need do what the warrant asks.

Nobody is asking for backdoor entry into Americans' phones: That’s a fiction invented to skew the debate. What the U.S. and many other countries are asking for is lawful access to communications when authorized by a court. This is the real encryption debate: What are the rules under which a government can open an encrypted iPhone or similar device, and access its messages in plaintext?

Intelligence agencies in the U.S. and elsewhere can usually find a way to get access to plaintext, or unencrypted text, without cooperation from companies, but the data they get may not be introducible in court, at least in democracies.

Apple needs to make the case to its global market that they don’t turn over data whenever the F.B.I. strolls through the door. That’s understandable. The U.S. also needs to help tech companies reassure a global market about surveillance in order to reassure customers.

But there are plenty of instances when it's appropriate for encrypted products to be opened to law enforcement, and the investigation into the San Bernardino killers is a prime example.

The best case scenario for cooperation between tech companies and governments would be an international agreement that lets people secure their data with the strongest possible encryption, using products that allow for the lawful recovery of plaintext by their governing national authorities under agreed-upon rules. The precedent to build on is the system of mutual legal assistance treaties that allow countries to exchange evidence and information for crimes like money laundering.

If countries can agree on reciprocal rules on accessing plaintext, we can get out of the encryption mess. This may not please privacy zealots, but it would make the Internet more secure without putting lives at risk.