Amazon vs Apple: Are All Police Requests for Assistance Alike?

On the surface, Apple’s refusal to construct a backdoor to terror suspect Syed Farook’s iPhone for the FBI and Amazon’s refusal to turn over Amazon Echo voice recordings to the Bentonville, Arkansas police in a homicide investigation look the same: both involve protecting the privacy rights of their customers and their commercial interests against incursions by political authorities acting in the public interest. Wherever one comes down on the relative weight of the interests at play in one case, it seems one should come down the same way in the other; Apple and Amazon are situated similarly.

In the linked CNBC commentary, law and technology expert Bruce Abramson disagrees. He argues that there are significantly different public policy principles at work in the two cases. So different are these principles that Apple’s refusal was justified and Amazon’s refusal is not. Abramson argues the FBI’s request to Apple amounts to an attempt to conscript or to commandeer Apple engineers to work (at creating a back door to the iPhone) at political authorities’ direction, whereas the Bentonville police seek only to have Amazon turn over data already in Amazon’s possession. Thus, while Amazon’s refusal is underwritten merely by privacy considerations that are defeasible by at least some considerations of the public good, Apple’s is underwritten also by a fundamental principle of liberal political economy: the government lacks the authority to conscript private citizens or to commandeer private firms in the routine administration of justice.

This piece could be used in the classroom to explore the boundary between the public and the private and to consider the sometimes illiberal claims that are made in the name of corporate social responsibility. Also of interest is Abramson’s use of analogy in constructing his argument. He analogizes Amazon’s position to that of a bank presented with a warrant to open a customer’s safety deposit box. He analogizes Apple’s position to that of factory owner directed to turn over production facilities to political authorities in a fascist régime like Mussolini’s Italy or Hitler’s Germany. All analogies break down (otherwise they aren’t actually analogies); do these analogies break down before or after they demonstrate something of value? >>>

LINK: Commentary: What Apple got right but Amazon is getting wrong (by Bruce Abramson for CNBC)

. . . 2016 opened with a high-profile device-related dispute between Apple and the FBI; it closed with one pitting Amazon against a local police department. And though the stakes were far higher in the Apple case, when it comes to headline principles, Apple’s refusal to cooperate got public policy right; if Amazon sticks to its guns it will get public policy wrong.

In Apple’s case, the stakes were particularly high. The FBI believed that an iPhone belonging to Syed Farook—one of the radical Islamic terrorists responsible for the San Bernadino massacre—might reveal useful information about other terrorists planning additional attacks. Unfortunately, Farook—like most people—had password protected his iPhone. . . . So the FBI tried to force Apple to develop a new “backdoor” technology to make the data accessible. Apple refused.

The matter implicating Amazon’s Echo is prosaic, by comparison. While investigating a homicide committed in a private home in Bentonville, Arkansas, the police noticed that the homeowner—and prime suspect—was something of an electronics junkie. Among his devices was an Amazon Echo, an “always listening” device that, when triggered, records ambient sound and stores the recording on Amazon’s cloud. The police thought that selected recordings might help fill some gaps in their investigation. Amazon refused to hand them over.
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The FBI attempted to seize control of a team of Apple’s engineers—the tech-sector’s dominant “mode of production.” . . . Commandeering an Apple engineering team is no different from seizing a manufacturing plant—not because the owner did anything wrong, but rather to serve some purpose deemed critical to the national interest.
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The Bentonville police, on the other hand, are simply asking Amazon to turn over data already in Amazon’s possession. Amazon’s refusal rests upon its desire to protect its customer’s privacy—both as a matter of principle and as a matter of sound business practice. Requests of this sort are hardly unusual. They arise, for example, whenever the police ask a bank to open a safety deposit box.

Obviously, it infringes the holder’s privacy rights—but were the police never allowed to open these boxes, they would soon overflow with physical evidence of significant crimes. American courts have considerable experience balancing these concerns on a case-by-case basis. If the Bentonville courts decide that disclosure is warranted here, Amazon should comply.

What do you think?

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