Apple should not be coerced into hacking into the San Bernardino shooter's iPhone, and we must get to a point as a society where law enforcement does not even make such a request. Mobile devices are not mere repositories for addresses, appointments, and email. As many people use them now, they are digital records of our thoughts, hopes, passions, and often our most personal secrets.
The metaphor of a safe simply does not work for the way many Americans currently use their phones. An increasingly accurate metaphor for a smart phone, is the human mind – smart phones contain a digital snapshot of key pieces of data that we previously held almost exclusively in our minds. We should no more think of hacking into peoples' smart phones than we should think of administering psychotropic drugs against someone's will to coerce testimony. It should be unthinkable in a free society.
With the proliferation of electronic communication, and especially in the aftermath of 9-11, we have become increasingly dependent on surveillance of electronic communications in the fields of intelligence, national security, and law enforcement. Emphasis on electronic surveillance and monitoring has become a pillar of human investigation. As security officials' reliance – or over-reliance – on electronic monitoring has grown, the ways we use personal electronic communications devices has also changed. Monitoring mobile phones 10-15 years ago served to establish who was talking to whom on the phone, and perhaps what they were talking about. Today, we use our phones for much, much more than talking to acquaintances. We store video, pictures, secrets, our thoughts, and our fears in various ways on these devices.
The "over-reliance" of intelligence and law enforcement personnel on electronic surveillance and exploitation grew out of the 9-11 hijackers' use of mobile phones and internet communications to plan and execute terrorist attacks and to recruit jihadists. This led to advances in technical surveillance and a growth of the secondary functions of targeting and analysis of the "take" from the surveillance. These are all understandable changes, and much of this work was necessary in the early years after 9-11.
One intended consequence of these developments was an expansion of the role of electronic surveillance and a significance growth of its relative importance in intelligence collection and investigations into the activities of suspects in national security and law enforcement. At least in the intelligence world, this has led to a reduced emphasis on human investigative and intelligence collection techniques – source and agent development and recruitment, interviewing skills, and human-focused information collection. Our HUMINT capabilities are rusty and we have relatively fewer excellent HUMINT operators and managers than we did on 9-11.
By "HUMINT capabilities," we are referring to the talents of intelligence officers to figure out complicated situations by acquiring difficult-to-obtain information, usually from people – from sources who are developed and cultivated (recruited) to collaborate. This is one of the oldest, and remains one of the most effective, methods of intelligence collection in espionage and law-enforcement investigations. Even in the cyber domain, the human element is important, as the critical factor in all online activity is knowing the intentions, plans, and actions of people.
There is less emphasis on HUMINT in national security and law enforcement, and its primacy is now challenged by technical collection. Technical collection has become an "easy button" that we not only push much too often, but that we have come to believe we MUST push to stop terrorists and fight extremist-connected violent crime. That view is wrong, and when it manifests itself in rhetoric like that which permeates the San Bernardino iPhone case, it challenges our commitments to privacy, freedom of speech, and freedom against coerced self-incrimination. We need to be putting the story together through creative, well-managed human investigations, and if we can't get everything we want, then we need to deal with that; perhaps by redoubling our efforts to run better, smarter HUMINT operations.
