At least twice in the past year, the U.S. was Twappled. That is, multibillion-dollar U.S. corporations used their significant position in their respective industry to obstruct the U.S. from conducting activities intrinsic to the purpose of government, but which these corporations saw as inconsistent with their own interests and ideals. The corporations’ actions were intended not to obstruct a single government act, but to obstruct an entire activity, in one case, to preclude the U.S. from ever being able to undertake a specific form of action. By doing so, did these U.S. corporations seek to leverage their market strength to replace terms of governance chosen by the American people with terms better suited to their individual business interests?
These two instances were, of course, first, Apple, Inc.’s marketing of iPhones with an encryption tool intended to allow anyone, regardless of motive, to hide his or her communications or data from lawful government inspection. Apple further sought to vacate a Magistrate Judge’s order that Apple provide reasonable assistance to the FBI’s efforts to access information on an iPhone used by an individual suspected of committing an act of terrorism in the U.S that killed 14 Americans and wounded another 22 at a holiday party in San Bernardino, California on December 2, 2015. Apple’s motion to vacate was mooted when the FBI was able to gain access to the iPhone’s information without Apple’s assistance.
The second instance was Twitter, Inc.’s direction to the data analytics company Dataminr, in which Twitter has a five percent ownership interest, to cease providing bulk open source data and real-time analytic tools to U.S. intelligence agencies. Twitter says it has a long-standing policy against third parties selling its data to a government or intelligence agency “for surveillance purposes.” More recently, Twitter enforced this policy against Geofeedia after an ACLU report stated Geofeedia was marketing Twitter and other social media data to police departments to monitor protestors and activists. According to The Wall Street Journal, Twitter was worried about appearing too close to U.S. intelligence agencies. Twitter’s dominance among social media instant-messaging/micro-blogging service providers means Twitter’s action might significantly impair the U.S.’s ability to obtain and timely exploit an entire medium of open source communications for threat intelligence, an important aspect of our security and defense.
Should we care when the U.S. is Twappled? After all, challenging government action is the quintessential American act. I suggest Americans should care. The governance concerns at stake are similar to those impelling repeated efforts to reform campaign financing – asymmetric influence over government by Americans with economic power. These concerns are heightened with Twappling, however, because although large campaign donations enhance a campaign’s ability to influence Americans in how to cast their votes, Americans still ultimately decide for themselves. Twappling, on the other hand, affords Americans no vote at all. Americans established the terms of governance to which they consent and limited the authority to change those terms to individuals chosen by and accountable only to Americans. Americans have not consented to have a terms of governance established by multi-billion dollar corporations.
Apple and Twitter separately intended their respective actions to prevent or hamper governmental activities designed to provide for the safety and the common defense of Americans. Safety and a common defense are, however, among the most fundamental reasons people form into groups and establish governments. Indeed, ensuring domestic tranquility and providing for the common defense are identified in the Preamble to the Constitution of the United States, along with establishing justice, promoting the general welfare, and securing the blessings of liberty, as reasons “We the People of the United States” established the Constitution of the United States to define the government by which we would consent to be governed.
Through the Constitution, We the People established three independent, co-equal branches of government, provided those branches with limited powers, and fashioned a system of checks and balances between them. We the People determined we would elect both those we empower to establish and amend our laws and charge to ensure those laws are faithfully executed, and require them to seek re-election on a regular basis so our government remained accountable to us at all times. We the People made these elected officials responsible to provide for our security and common defense.
How is Apple seeking to change our terms of governance? In 2015, Apple CEO Tim Cook spoke with reporter Charlie Rose about Apple’s decision to resist assisting the FBI gain access to information on the iPhone that had been used by one of the San Bernardino shooters. Mr. Cook argued that Americans shouldn’t have to choose between privacy and national security. “We’re America,” he said. “We should have both.” What he did not say was that Americans did not have to choose between privacy and national security because they had already chosen to have both and had effected their decision in the Fourth Amendment to the Constitution of the United States. We the People chose to protect our “persons, houses, papers, and effects against unreasonable searches and seizures,” and to require search warrants to be based on “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Apple apparently rejects this choice and seeks a change. Rather than seek a change through constitutional means, it seeks to effect its decision by preventing the government from conducting any searches, including reasonable searches pursuant to Constitutionally-valid warrants, of data encrypted on iPhones.
The iPhone’s significant prevalence in the cellphone market is such that if Apple is successful, it will effectively have changed terms of governance cemented in the Constitution to terms of governance of it prefers.
While no doubt there are individual Americans who wholeheartedly agree with Apple and Twitter, perhaps even a large number, they were not given a choice. Americans have not consented to have our terms of governance modified by multi-billion dollar corporations. Rather, Americans established the terms of governance to which they consent and limited the authority to change those terms to individuals chosen by and accountable only to Americans. We the People will have had no say. We were not asked if we wanted our privacy interest in cellphone data to be absolute. We were not asked if we would chose to protect that privacy interest in a manner that will enables those who threaten our safety or the national defense to shield their plans and intentions from our government. We were not asked if we wanted to amend the Constitution to withhold from our government the authority to search the contents of cellphones used by any person, for any purpose, anywhere in the world. Apple will have imposed terms of governance on the American people without our consent; it would have used its economic strength to govern.
