Should You Have to Speak with Others in a Way the Government Can Understand?

Have you purchased an iPhone 6? If so, you are now on the front lines of a major dispute between Apple and the federal government over the privacy of your personal data. Apple wants you to be able to protect your data from all possible snoopers, whereas the federal government wants them to install a “backdoor” for law enforcement purposes. The dispute boils down to one fundamental question: “Must you communicate with others in a way the government can understand?”

Under earlier versions of the Apple iPhone iOS operating system, if the government wanted to access the contents of someone’s phone but couldn’t break the passcode, they could get a search warrant. The police would then send the phone to Apple, who would then unlock that information pursuant to the warrant.

But under the new iOS8, Apple says this is no longer possible. Their website states, “Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data.” Shortly afterwards, Google announced similar encryption for phones running the latest version of Android.

This provoked a fierce backlash from law enforcement agencies. FBI director James Comey said this would help terrorists and child predators. James Cole, the No. 2 official at the Justice Department, told Apple officials that they were “marketing to criminals” and that “a child will die” because of Apple’s policies.” Chicago police detective John Escalante said, “Apple will become the phone of choice for the pedophile.”

The federal government has demanded that Apple and Google allow some form of backdoor access to the contents of an encrypted phone to law enforcement officials with a search warrant. FBI director Comey warned that if Apple and Google did not do so voluntarily, “Congress might have to force this on companies.

Defenders of Apple and Google have countered that (1) requiring a “backdoor” for the government also allows a backdoor for criminals, hackers, or malicious foreign governments, (2) such backdoors would hurt U.S. companies in a competitive global market, and (3) law enforcement can often obtain the data they desire through other means, such as cloud backups of suspects’ data. (See typical statements from the Center for Democracy & Technology and the Electronic Frontier Foundation.)

These are all good arguments in favor of Apple and Google. However, I’d like to add another one: You are not obliged to communicate with others in a way that the government can understand.

Suppose you and your cousin both spoke an obscure dialect of a rare language such as Basque, which we will call “Crasque.” You and he understand one another perfectly, but virtually no one else can (including the federal government).

Is communicating in such a fashion a crime? Does it violate anyone’s rights? Of course not. Speaking in an obscure tongue is perfectly legal -- just as whispering a private joke to a friend in a way that no one else can overhear is perfectly legal.

Now suppose the government had a valid search warrant to wiretap your phone. You and your cousin are speaking Crasque, and the feds can’t understand a word you two are saying. Is that in and of itself illegal? Can the feds rightly demand that you translate your Crasque into English for them? Of course not.