The Apple case, Privacy in Our Devices, and Law Enforcement

Everyone seems to be talking about Apple and their refusal to comply with a court’s order that they “unlock” a phone that might contain evidence related to a violent attack in California. The case brings up serious Fourth Amendment concerns.

The Fourth Amendment to the US Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While normally a court order satisfies the probable cause prong, creating a right for law enforcement to examine “papers” as applied in this case, I am troubled that the warrant in this case is allowing a “fishing expedition” by the government. In other words, the Government doesn’t know what is or is not on the device, but thinks  that there may be something that they will find useful.

This isn’t enough, in my opinion, to allow the government to breach the wall of privacy. I, like many others in the criminal justice field, will continue to carefully watch developments in this most intriguing case. For now, I applaud Apple for the courageous stance they are taking by litigating this issue through the courts, as our system is set up to require. The rulings in the case will have a far-reaching and long-lasting impact on the world of 4th Amendment interpretation and practice.

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