#ApplevFBI: Think Different

Bernard Harcourt Exposed 02

Frank Pasquale’s post to the on-line symposium on Exposed: Desire and Disobedience in the Digital Age provides the perfect opportunity to discuss the ongoing controversy between Apple and the FBI—especially in light of David Pozen and Daniel Solove‘s respective concerns that “digital disobedience” may fall short of what’s required to properly address the problems surrounding digital privacy today.

Frank Pasquale is undoubtedly right that Apple’s newfound embrace of privacy is little more than a smart business decision: “Large firms like Apple now see commercial advantage in fighting demands for decryption in the US,” Pasquale writes convincingly.

The fact is, Apple’s newfound embrace has to be understood against the backdrop of what was probably its most humiliating moment in history—and probably its most costly, in terms of international business. Yes, I am referring to that infamous NSA Powerpoint PRISM slide, leaked by Edward Snowden, showing Apple on that long list of Silicon Valley firms turning over our personal data to the NSA. Everyone will, no doubt, remember the slide all too well:



Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL… and, yes, last but not least, trailing behind the others, just one among many, just another undifferentiated firm “added Oct. 2012”: Apple. Apple was, after all, the one company we all had faith in, we all thought might be different than the others. It was the company that made its reputation on being “different.” Recall its famous advertising campaign, “Think Different,” in the late 1990s, with images of Martin Luther King, Muhammad Ali, Mahatma Ghandi, Albert Einstein, and John Lennon, with references to the rebels, the misfits, the trouble makers, the ones who see things differently… “They’re not fond of rules and they have no respect for the status quo,” Richard Dreyfuss narrated in the Apple commercial (and Steve Jobs as well in the unreleased video). “Because the people who are crazy enough to think they can change the world, are the ones who do.”


But there was Apple, right there on the NSA slide, trailing the others, trying to catch up with the others, collaborating with the spies and giving away our data to the signal intelligence agency. There it was, just another embarrassing ne’er-do-well. Hardly a rebel, hardly a trouble maker, hardly the one who sees things differently. No, Apple was just like all the others, giving our information away to the government. No Martin Luther King, no Ghandi, in fact, no courage or backbone or spine.

Of course, as long as nobody knew, Apple didn’t seem concerned about our privacy. But once that NSA slide went public, wow, how things changed! And this makes business sense, naturally, especially for a company like Apple that wants to dominate the markets in China and Europe and elsewhere abroad—and desperately needs, to do so, to appear independent of American intelligence interests. A company that, perhaps, desperately needs to regain a bit of our trust and to try to distinguish itself once again.

But, today, in 2016, there is even more to it than that. Apple has been increasingly flexing its own “governmental” muscle. It has increasingly been trying to act like the state. In effect, Apple is now showing the world that it may be even stronger than the United States government—which incidentally may be true given that it is, fiscally, so much more solvent and, in our neoliberal imagination at least, so much more legitimate.

The lines between the state and commerce have been falling apart for some years now. You may recall the story about Josh Begley that I detailed in Exposed: how Apple rejected Begley’s application for a drone stream app because it did not appeal to a “broad enough audience.” (Exposed, p. 189-190). Apple and other firms like Google have taken over security and surveillance functions, and in the process are breaking down the traditional lines that separate commercial from governmental functions.

So Apple’s resistance to the FBI not only makes business sense, it also contributes to a larger trend that is reshaping our form of government in the twenty-first century.

Given all of this, it makes little sense to approach the #ApplevFBI controversy from a traditional public policy perspective. Rather, we need to approach it from a critical theoretic perspective, and remember and emphasize that Apple would not even be resisting the FBI were it not for the type of digital disobedience that Edward Snowden embodies—were it not, that is, for the fact that Snowden exposed Apple.

Nothing here is intended to suggest, as Ann Bartow intimates, that legal reforms have no place alongside digital disobedience. To the contrary, as I suggest, the entire property relation to personal data needs to be reformed. But it is to underscore the need, as well, for more radical or extra-legal interventions. Without those, useful legal reforms are unlikely to attract much public support. We need to think different.

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