Wednesday 21 February 2018
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Are Microsoft and Apple Defending Our Constitution?

Remember King George III? If not, thanks to Broadway, we can stream his tunes on the sublime “Hamilton“ soundtrack for a little recall. Of course that’s King George in song, whereas I am talking about King George the dictating monarch and bully imposing his governmental whims on the American colonies. He taxed, invaded, paraded, and devastated the colonists until they reached their limit and began pushing back. One war later, they had their independence.

While the names and faces have changed, we are to a large extent, witnessing a similar revolution in full view on a digital stage. Only in this instance, I don’t think anyone is the villain. I’d like to believe both sides have the best intentions just as I believe they’re both misguided in places.

On one side there’s our government trying to keep us safe. I can go there. I like being safe. I just don’t believe the FBI needs access to my boring chats, personal emails, and other private information in order to protect all of us. As everyday American citizens we participate in a judicial system that tells us we’re all innocent until proven guilty. Yet in the digital world, the government is telling us that it doesn’t know what we are but it wants to be able to find out whenever it wants to and just in case.

The colonists in this instance are the technology companies that are trying to protect our privacy. I can go there too. I like having my privacy. A few centuries removed from “No taxation without representation” we now have “No information without approbation.” But the technology companies don’t exactly have clean hands either. Many of the very things they accuse the government of attempting to do with their users’ private information, they do themselves. They just push it under the table because national security is not at risk. But it’s still the same violation.

So where does that put us? Regardless of if Edward Snowden is our Paul Revere or Benedict Arnold, then I would say somewhere between a Declaration of War and the signing of the Declaration of Independence.

The FBI fired the first shots with Apple and other companies. Apple CEO Tim Cook and his company fired back, turning to the judicial system as a way to say, “bring it on” because we are on the right side of the law. Now other technology companies, tired of government meddling are uniting and fighting back, hard. Many have added or are in the process of adding advanced encryption to their services, exactly what the government was trying to avoid. Those are more defensive measures however.

Then suddenly this month Microsoft has gone on the offensive by filing suit against the Justice Department over its use of court orders to get Microsoft to turn over customer files stored in its datacenters. According to Microsoft, authorities used the antiquated Electronic Communications Privacy Act from 1986 to demand customer information more than 5,600 times in the last year and a half. Sure, cynics could say this suit is a tactical move by Microsoft to align itself with the general public mood on privacy matters. Yet what I believe this truly shows is tech companies joining Tim Cook and Apple, and reaffirming the principles of our Constitution in this electronic age.

It is nice to see technology companies take the first shot for a change. We need to have this debate about online privacy, but you can’t debate if only one side is repeatedly firing first. Of note is that the Justice Department continues to fire at Apple, most recently again seeking a court order to force Apple to unlock another phone in a New York drug investigation.

For all of us as citizens of our great nation, there is nothing wrong here, and what we are witnessing is exactly as our Founding Fathers intended – constitutional edicts and judicial processes that force a conversation we as a country need to have. There have always been ways to spy on citizens in the USA and always will be. Technological advances simply raise the ante in this game – along with curious questions about why the government needs access akin to entering our homes without a warrant.

Today the government has historically unprecedented access to information about its citizenry simply by watching all of us posting, commenting, etc., in public social media – Facebook, Twitter, Instagram, Reddit, Snapchat and so many other sites. These sites and others give access to literally anyone to see what we are up to – and Facebook’s Terms of Service gives them co-ownership over all of their member’s content, too. Add to that the millions of blogs and comments, again all public, and there is a mind-boggling data trove that requires no back door for authorities to constantly analyze for illegal or terrorist noise. Adding to all of that, it is well reported that the government pays companies like ATT, Verizon, and Sprint millions of dollars per year for their phone records. Isn’t that enough? Is that too much? Where do we draw the line?

As a democracy we are blessed to have the U.S. Constitution that amazingly has stayed relevant for nearly 250 years already. It’s the law of the land, one that continues to succeed because our founding fathers had the foresight to give it fundamental principles that are timeless. As a society today we enjoy technologies that were heretofore unimaginable, and as such we need updated laws protecting our sacrosanct rights, and new clarifications that uphold the Constitution while reflecting who we are as a society today.

Certainly our Founding Fathers understood that the privacy necessary for a true Constitutional Republic to thrive would indeed allow some unscrupulous citizenry the opportunity to plot nefarious schemes in the safe confines of their homes. But our wizened original leaders recognized that law enforcement would have other means to root out the bad guys. Court ordered wiretaps, legally authorized search warrants, and other mechanisms have always been available, and for the most part, historically the courts have controlled their reach. Microsoft is now questioning that reach today – as is Apple. After all, the very character of our democracy requires no “back doors” to snooping on its entire citizenry.

Mark Weinstein, is one of the USA's leading social media and privacy experts and CEO of Mark is one of the founders of social networking, a leading privacy advocate, and author of the award-winning Habitually Great book series. Mark is revolutionizing online communication at MeWe, with Sir Tim Berners-Lee, the founder of the World Wide Web, as a key MeWe Advisor. Mark writes a technology column for Huffington Post, and has been featured on CNN, Fox News, and has been honored as "Privacy By Design Ambassador" by the Canadian Government.

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