As citizens of the United States, we rely on our nation’s foundation of rights as defined by the Constitution. These fundamental rights are guaranteed us, and these rights are protected and enforced by our Government – but what happens when it is the Government that is testing the boundaries of one of those rights, namely, the Fourth Amendment and the right to protection from unreasonable searches and seizures?[1]
To search or seize a person or their property, officers must obtain a warrant which can only be obtained on probable cause, by an independent and unbiased magistrate or judge, and must clearly state what or who will be seized.[2] Probable cause is defined as belief or knowledge from a reasonable person that an offense or crime was committed or will be committed, and that the search itself will produce useful evidence related to that crime.[3] The search warrant must clearly state the breadth, or scope, of the search, and the particularity, or specific items, that will be confiscated.[4] The intent behind these strict requirements was to limit the ability of agents from seeking broad, undefined warrants and infringing on that Fourth Amendment right. While it is understandable that police officers need to search people and their property in the pursuit of safety and general welfare, that need cannot overtly overpower the need to privacy and the Constitutional right to be safe and secure in one’s person and home.
There are exceptions to the search warrant requirements, especially when there are questions of public safety or national security. If an item is found during a search that was not originally included in the purview of the warrant, it can be kept by the police if it is deemed to be an “instrumentality of crime,” and assists with the investigation for that specific crime.[5] The passing of the Foreign Intelligence Surveillance Act (FISA) and the court system that came with it established a way for the Government to access information deemed to be necessary for national security without meeting the standard warrant requirements.[6] The court system established to manage these issues, within FISA, grants requests from the FBI to monitor and electronically survey phones and fax lines of individuals if they have probable cause.[7] This Act created a way for the Government to create an exception to the Fourth Amendment using the newly coined “foreign intelligence exception.”[8]
In the recent case of Apple v. FBI, we potentially face a new kind of exception to the Fourth Amendment’s protection from unreasonable search and seizure.[9] The Government is trying to access information stored electronically on a cell phone, but the technology does not currently exist that would allow them to access the information without a passcode. So, the government has asked Apple and other technology icons to create this technology, this backdoor, that would give the Government access to that information before it is destroyed or reset. When Apple declined, the Government requested a federal judge to issue a court order under the All Writs Act of 1789.[10]
It could be argued that seizing a cellphone, and the information on it, would be covered by the instrumentality exception. Communication between conspirators, search histories, social media presence, potential pictures, and more could all be accessed on the phone. While that individual information may not be listed in a warrant, that private information on a cellphone could be considered included in the search because of its potential relationship to the crime. It could also be argued that FISA could be applied to the situation in San Bernardino, and the Government has reason to access this information. However, both of these exceptions require access, through a backdoor, to the information stored electronically. The Government has a need to amend the security measures of private companies protecting our information for the sake of national security. How do we balance national security measures against intellectual property issues, privacy concerns, and separation of the Government from private companies’ affairs?
The question today is, what happens when that backdoor is opened? And should it be? As we develop technology to make our daily lives simpler and our citizens safer, our legal lives become more complicated and our national security becomes more invasive out of necessity. Defining that balance will be the debate for the next decade as the world balances growth and expansion with development and personal privacy.
[1] U.S. Const. amend. IV.
[2] Fed. R. Crim. P. R 41(b), (e).
[3] United States v. Nilsen, 482 F.Supp. 1335, 1338 (1980).
[4] United States v. Cohan, 628 F.Supp.2d 355, 359 (2009).
[5] Johnson v. United States, 293 F.2d 539, 540 (1961).
[6] Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783.
[7] 50 U.S.C.S. § 1801 (2015).
[8] United States v. Marzook, 435 F.Supp.2d 778, 780 (2006) (citing the District Court Judge’s opinion).
[9] In the matter of the search of an Apple iPhone seized during the execution of a search warrant on a Black Lexus IS300, California license plate 35KGD203.
[10] 28 U.S.C.S. § 1651 (2015); Yoni Heisler, Here’s Apple’s long-awaited legal response to the FBI, Boy Genius Report (Feb, 25 2016, 3:17 PM) http://bgr.com/2016/02/25/apple-vs-fbi-legal-filing/.