The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.
By way of background, the U.S. government is seeking a court order directing Apple to help “unlock” an encrypted iPhone previously used by one of the San Bernardino terrorists. The resulting public debate has focused on arguments that the desired order would assist law enforcement while also jeopardizing the security of many smartphones. That sounds like a perfect opportunity to reflect on the constitutional provision that is most closely applicable: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” If the government orders “seizures” of Apple’s programmers and “searches” of the encrypted device, then “the people” might no longer be “secure” in a precious set of “effects”—namely, their iPhones.
Yet Apple’s recent filing doesn’t advance a Fourth Amendment claim. And it’s not because Apple was shy about making constitutional arguments: while focusing on statutory issues, Apple also advanced arguments based on the First Amendment’s guarantee of free speech and the Fifth Amendment’s guarantee of due process. But those provisions don’t speak to the fundamental conflict of interests at issue in the case. As Apple wrote in its filing, “There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public.” What constitutional provision does that call to mind? Apple further argued that people’s “personal information” should be “secure” and that “[n]o reasonable person” would approve of the government’s position. It’s as though Apple is subliminally channeling the Fourth Amendment’s text and purpose.
Of course, there’s a reason why Apple didn’t raise any Fourth Amendment arguments: under current case law, such arguments would be very hard to make. Fourth Amendment cases have generally focused on individuals’ “reasonable expectations of privacy” and “constitutionally protected places.” That sounds sensible, and it often is. By focusing on individual privacy, the Court has indirectly tried to promote “the right of the people to be secure” against governmental power. But in light of digital technologies, the connection between individual privacy and governmental power has frayed. It’s now possible for the government to obtain enormous power, undermining the people’s security, without significantly infringing on any individual’s privacy. If Fourth Amendment law is going to keep up with these changes, it needs to evolve: rather than requiring or focusing on direct violations of individual privacy, courts should attend to the dangers of governmental power and the risks of its abuse.
Take the Apple case. The encrypted iPhone is governmental property, the county that owns the phone wants it to be searched, and the government has obtained a warrant. So there’s no significant personal privacy interest in the contents of the device, much less a privacy interest running to Apple or any particular consumer. And even if there were such a personal privacy interest, it would be outweighed by countervailing law-enforcement interests. These points explain why Apple isn’t making a Fourth Amendment argument, but they miss what the Apple case is all about. Without infringing on any individual’s privacy, the government may obtain an investigative power that could be abused in other contexts, to the detriment of privacy as well as other values. It is impossible to assess those risks of abuse by asking only whether the government’s requested order would in itself invade individual privacy. For instance, the Fourth Amendment should care about who would store or control access to the code that the government desires—much as debates about the NSA telephonic metadata program focused in part on whether customer metadata would be stored in private or governmental hands. As Apple wrote at the start of its filing, “This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power. . . .”
To put the Fourth Amendment’s relevance to the Apple case in historical perspective, consider the “writs of assistance” that so enraged some founders. Those writs allowed British officials to conscript bystanders into searching homes for smuggled goods. In that eighteenth-century context, significant expansions of governmental power tended to be accompanied by grave infringements on privacy. As a result, a prohibition on invasions of privacy, like ransacking a home pursuant to a writ of assistance, could check governmental power. Today, by contrast, the government can conscript Apple engineers in order to gain the power to access a huge number of devices—each of which has more personal information than the average house. So a search or seizure that in itself has only limited privacy implications (here, hacking the encrypted iPhone) may turn out to yield an unreasonable risk that governmental power will be abused, contrary to the purpose of the Fourth Amendment.
The writs of assistance shed light on the government’s request for assistance in the Apple litigation—which, incidentally, would issue under the founding-era “All Writs Act.” Whether viewed as constitutional avoidance or simply as part of the background conditions that gave rise to the All Writs Act, the Fourth Amendment and its history ought to figure in. A similar point has been made before: in United States v. New York Telephone Co., a precedent at the center of the Apple litigation, Justice John Paul Stevens invoked the writs of assistance and argued against an order directing a telephone company to install pen registers. But Stevens was in dissent, and the majority upheld the order. Echoing the Fourth Amendment, the majority plausibly held that no “unreasonable” burdens were being imposed. Yet digital technologies have changed the implications of the government’s writ authority. It’s time to update the existing approach to Fourth Amendment reasonableness in light of these new technologies. And that means paying more attention to power.
First posted on Prawfs.