“The Right of the People to Be Secure in Their [Encrypted] Effects”

A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.

You might think that the iPhone litigation would centrally concern whether the government’s requested order would undermine the Fourth Amendment’s “right of the people to be secure in their [encrypted] effects,” namely, their iPhones. After all, one of Apple’s main arguments is that compliance with the order would require the creation of new code that would undermine the security of iPhones. The relevant code could be stolen or leaked, for instance—hardly unthinkable in the post-Snowden, post-Sony hack world. Or the government might request or otherwise obtain the code—a possibility that the government has now raised as an alternative form of relief.

Yet Fourth Amendment doctrine has nothing to say about those dimensions of the Apple litigation. As the government observes in a footnote in its March 10th filing:

The search of a smartphone does implicate the Fourth Amendment, but the government has doubly satisfied the Fourth Amendment by obtaining (1) a warrant and (2) the consent of the phone’s owner. Moreover, Apple cannot assert any privacy interests of the phone’s deceased user, the terrorist Farook.

This argument well reflects that current Fourth Amendment doctrine is focused on privacy-based claims raised by individuals. But that approach misses out on much of what is at stake in the Apple litigation. Even if there is no privacy interest in the phone, or even if any such interest is overcome by the government’s search warrant, the government’s requested exercise of power would still place the people’s security at issue.

With the Fourth Amendment relegated to a footnote, the debate about iPhone user security has instead taken place under the auspices of the All Writs Act—or, more accurately, under the Supreme Court’s New York Telephone precedent that most authoritatively interprets the Act. But neither the Act nor the precedent explicitly calls for direct consideration of the people’s security. As a result, Apple has to present these interests indirectly by arguing that they provide Apple with a “substantial interest in not providing assistance.” As Apple puts it, “Apple has a strong interest in safeguarding its data protection systems that ensure the security of hundreds of millions of customers.” So iPhone users’ interests are not presented as valuable in themselves, so much as indirectly relevant to Apple’s potentially unreasonable “burden.”

The government principally addresses user security concerns by noting that the relevant software can be stored and used by Apple, in a secure facility. And, the government contends, Apple is equipped to defend that code, thereby providing for the security of its customers. This solution calls to mind the recently enacted USA Freedom Act, which prohibited the NSA from storing bulk telephone call metadata: requiring that both Apple’s iPhone code and the telephone call records remain in private hands will help force the government to go to court each time it wants to access to either of those resources. This state of affairs may better promote the people’s security than leaving the code or call records with the government and trusting it to play by the rules. It is plausible that the Fourth Amendment itself requires these kinds of arrangements, so as to check governmental power and ensure the people’s security.

Yet this entire debate is taking place under the auspices of the All Writs Act and so could be rendered moot by the enactment a well-drafted statute. For instance, the political branches could enact legislation that prohibited consideration of iPhone user security when evaluating All Writs Act requests. Or the political branches could go beyond the All Writs Act by requiring that smartphones use encryption with special “backdoors” to enable easy government access. These possibilities should be troubling. It’s all well and good for the parties to interpret the All Writs Act as a statutory stand-in for the Fourth Amendment’s guarantee of security. But, given its text, history, and purpose, the Fourth Amendment should constrain legislation that centrally affects the people’s security in their encrypted effects.

To be clear, the point is not that Apple or any other business has a constitutional right to thwart law enforcement. Rather, the point is that efforts to empower law enforcement can unreasonably jeopardize the people’s security, contrary to the Fourth Amendment.

First posted on PrawfsBlawg.

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Filed under Fourth Amendment, Security, Supreme Court

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