In a Congress where lawmakers have trouble performing even the most basic functions of the legislative branch—funding the government or approving judicial nominees, to name two—bipartisan issues are a rarity.
Historically, digital privacy has been one of the areas where Republicans and Democrats find common ground. The coalitions that support surveillance-reform measures, for example, have brought together Congressional liberals and libertarians, Tea Partiers and moderates. (Senator Ron Wyden, a Democrat, told me he’s proud of his collaboration with Rand Paul, a libertarian-leaning Republican.)
But even as lawmakers work together on new privacy legislation, the increasingly public legal fight between Apple and the FBI is beginning to reveal partisan fault lines among the American public.
Two recent polls show that Americans’ allegiances in the Apple-FBI conflict are split by party. One poll, conducted in mid-February by Reuters, showed that 54 percent of Democrats supported Apple, compared to just 37 percent of Republicans. Another poll, conducted a few days later by Morning Consult, found a similar split, but less support for Apple: 49 percent of Democrats said Apple should cooperate with the FBI, compared to 57 percent of Republicans. (A Pew poll conducted around the same time showed no partisan differences, but has been criticized for imprecisely phrased questions.)
A similar divide is on display among presidential candidates. The Republican field, led by Donald Trump, has largely denounced Apple’s position. Marco Rubio and Ted Cruz forcefully criticized the company for resisting the court order, while John Kasich took the FBI’s side with a characteristically moderate tone. Trump went biggest of all: He called for a boycott of Apple—leading the charge by switching to a Samsung phone and firing off a series of typo-ridden tweets—and said its CEO, Tim Cook, is resisting the FBI “probably to show how liberal he is.”
While the Democratic candidates haven’t expressed outright support for Apple, both Bernie Sanders and Hillary Clinton showed balanced opinions on the case when they were asked about it at a recent debate. The candidates said they found merit in both sides’ arguments: “Frankly, I think there is a middle ground,” Sanders said, and Clinton called the situation a “difficult dilemma.”
Jake Laperruque, a privacy fellow at the Constitution Project, says digital privacy has brought together factions like “civil libertarians on the Democratic side, and people who are worried about government abuse on the Republican side.” He pointed to some of the unusual alliances that it has produced, such as the one between California Representatives Zoe Lofgren and Darrell Issa. “Those are not people who agree on much,” he said.
Nicholas Weaver, a computer-security researcher at the International Computer Science Institute in Berkeley, says that digital privacy at least “shouldn’t be” a partisan issue. He, too, points to libertarian elements in both parties that have come together to support privacy, often opposed by what he calls “deference-to-authority” moderates.
Both Weaver and Laperruque say the disconnect between Democrats and Republicans on the Apple-FBI court case may be fueled by a lack of information.
It’s not every day that a fight over encryption protocols takes over national headlines, and rarer still that questions about computer science and complex legal issues are raised on the national debate stage. Without much background about the substance of the Apple-FBI spat, Americans new to the issue may be leaning on their politicians for a model of how to feel about the conflict.
And Weaver says the Republican candidates may be taking their cues from Trump on the debate stage. “‘Terrorism! Terrorism!!!’ sells as a political issue, regardless of whether it’s actually relevant or significant,” Weaver wrote to me in an email. “So it’s natural that the other Republican candidates are following his lead.”
That’s certainly how it appears to Wyden, the Democratic senator from Oregon who has been fighting for digital privacy for much of the 35 years he’s spent in Congress. Wyden says he expects the two sides of the Apple-FBI debate to converge as time goes on, as people learn more about the details of the situation.
I asked Wyden if he frames his arguments any differently when he’s speaking to Republicans and Democrats. No, he said: He’s been able to convince many of his colleagues from both parties just by explaining to them the intricacies of a debate he says has been “vastly oversimplified.”
“When you tell people the value of strong encryption, and the very substantial downsides that we’re talking about with respect to weak encryption, it doesn’t become ‘are you a D or an R,’” Wyden said. “It becomes, ‘Do you understand the technical challenge, or don’t ya?’”
In the absence of complete information, the public may also be relying on their impressions of the players in the Apple-FBI spat. Liberals are likely to be attracted to Tim Cook’s increasingly vocal advocacy for liberal civil-liberties issues such as LGBT rights and immigration, while the FBI may evoke Republicans’ long-standing allegiances to law enforcement.
Of course, nobody involved in the encryption debate has an incentive to frame it as anything but a bipartisan issue. Apple has called on the government to drop its suit, proposing that a Congressional commission would be a better place to air each side’s grievances, and government officials have repeatedly called for “more dialogue” to help Washington and Silicon Valley reach a mutually agreeable conclusion.
Even if digital privacy is starting to polarize Americans, it may be a short-lived development. In the past decade and a half, Americans’ attitudes toward privacy and surveillance—as well as the voting patterns of their senators and representatives—have fluctuated with national-security fears.
Right after 9/11, the first priority for Americans and their lawmakers was to protect the country from further acts of terrorism, paving the way for a toughening of surveillance laws in the Patriot Act. But according to polling from The Washington Post and ABC News, the post-9/11 consensus didn’t last long. By 2006, after news broke of warrantless wiretaps authorized by President George W. Bush, 73 percent of Democrats said the government was intruding on Americans’ privacy, compared to 50 percent of Republicans.
But by mid-2013, when Edward Snowden revealed the full extent of the NSA’s surveillance programs, Democrats and Republicans were in agreement again. A poll taken a month after the first leaks were published showed that 70 percent of Democrats and 77 percent of Republicans thought the government was overreaching.
After the San Bernardino shooting in December, fears of further terrorist attacks are growing, although Republicans are more worried than Democrats. This anxiety could help the FBI convince Americans—and certainly Republicans—that it needs to do more to secure information that could prevent the next attack.
If Congress moves soon to resolve the dispute at the heart of the Apple-FBI case, there exist cross-party coalitions of digital-security-savvy lawmakers who could band together to pass a law. But if Americans’ appetite for government intrusions into their digital lives begins to split again among party lines, a future Congress may find itself gridlocked even on privacy.