The ethical consequences of “going dark”

• DOI: http://doi.org/10.1111/beer.12313
• Published date: 01 January 2021
• Date: 01 January 2021

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  wileyonlinelibrary.com/journal/beer Business Ethics, Env & Resp. 2021;30:116–126.© 2020 John Wiley & Sons Ltd

1 | INTRODUCTION

The scene was a lar ge room within a spacious conferenc e center in

San Bernardin o where a group of emp loyees had gather ed for an

early Christmas party. Outside there were gathering clouds beneath

a warm Decembe r sun. For a few terrifying moment s there was no

other sound excep t a series of rapid gu nfire shots. A rmed with an

assault rifle , Mr. Syed Farook, a county hea lth inspector, kill ed 14

people and woun ded 22 others. Farook was ass isted in the lethal at-

tack by his wife. Th ey were both followers of th e ISIS terrorist grou p.

The couple was kil led a short time later in a sh ootout with police.

In the frantic p eriod after the t errible shooti ng, the FBI sought

to determine if th ere were accomplice s or if subsequent at tacks

had been plann ed. Were the Farooks li nked to a local terro rist ISIS

cell, and did they h ave allies prepared to pursue othe r targets? The

couple's iPhone s might provide clue s to answer those qu estions,

but they were tight ly locked by means of A pple's unbreaka ble en-

cryption co de. And thanks to company polic y there was no “master

key” or backdoor ac cess. As the drama unfolde d, the FBI petitioned

Apple for some as sistance in bre aking the code, bu t the company

respectf ully refused. Apple CEO, Tim Coo k, has repeatedly insisted

that hyper-strong en cryption wit hout backdoor ac cess is the only

suitable way to pr otect the priva cy of Apple's custo mers: “I don't

know a way to protect p eople without encrypti on....[and] you can't

have a backdoor that 's only for the good guys” ( Yadron, 2016, p. B6).

Several years la ter, in December 2019, a Saudi national b urst

into a classroom bu ilding at the Pensacola naval base i n Florida and

gunned down 11 stud ents, killing three U.S . sailors. Mr. Alshamari, a

second lieuten ant in the Royal Saudi A ir force, was studying at the

naval base as par t of a program that train s foreign militar y personnel.

He was morta lly wounded by Sheriff 's deputies after they a rrived at

the scene. The FB I sought access to the shooter's iPh one, but once

again Apple ref used to unlock the encrypte d device. When the FBI

succeeded in cr acking the phone several month s later, they discov-

ered that Alsha mari had repeate dly communicate d with al-Qaida

operatives to pl an this attack.

As a result of thes e and similar incid ents, five coun tries have

warned technology companies that they expect cooperation when-

ever they seek acce ss to encrypte d data. The “Five Eyes” f reely

share and exchange i nformation and in clude the United St ates,

Received: 31 Janu ary 2020 

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  Revised: 18 July 202 0 

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  Accepted: 24 July 2020

DOI: 10 .1111/bee r.12313

ORIGINAL ARTICLE

The ethical consequences of “going dark”

Richard A. Spinello

Carroll Sch ool of Management , Boston

College, Chestnut Hill, MA, USA

Correspondence

Richard A. S pinello, Carro ll School of

Management, Boston College, Fulton Hall

430, Ches tnut Hill, MA 02467, USA.

Email: spinello@bc.edu

Abstract

The adoption of hyper-strong e ncryption for mo bile devices, such as the i Phone,

has reignited debate abo ut the need for exception al access and the relative p rior-

ity of privacy r ights. Many soft ware programs and algor ithms are not neutra l but

“value-laden,” and unbreakable encryption software virtually absolutizes the right

to privacy, though it has jus tified limits in ethics and law. High tech compa nies have

resisted any exceptional a ccess solutions and gen erally opposed coo peration with

law enforcement agencies fo r the sake of protecting t he data of their custome rs.

We argue that this strate gy is ethically flawe d based on the priorit y of the right to

physical securit y over the right to privac y along with the need to e nsure peace and

order in the name of the co mmon good. To support this line of reasoning we ampli fy

the undifferent iated conception of the common good prese nted in the literature and

sketch out the grounds for l imiting rights base d on the need to conform to the ju st

requirements of th e public order in a democ ratic society. The discus sion culminates

in a proposal for an except ional access scheme that has the potenti al to minimize risk

to innocent users.