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Feb. 23 — Apple Inc.'s public refusal to comply with a court order requiring the company to assist the FBI in gaining access into an iPhone belonging to one of the San Bernardino shooters is casting doubt on the overall effectiveness and continued viability of Fourth Amendment protections for technology.
Evolving technology has outrun Fourth Amendment jurisprudence as it slowly attempts to balance expanding privacy interests in data stored in electronic devices with the government's interest in protecting the public from acts of terrorism, observers from various corners of the criminal justice system agreed.
A magistrate judge Feb. 16 ordered Apple to disable a feature that would wipe the iPhone's data after 10 incorrect passcode guesses, but Apple claimed the mere existence of such disabling software would weaken the device's security .
In a public statement, Apple told its customers that disabling the feature would subject all iPhones to the risk of a security breach via rapid-fire passcode guessing. Apple stated it would fight the court order.
Michael Ramos—district attorney for San Bernardino County, Calif., and president-elect of the National District Attorney Association—said neither prosecutors nor the FBI is seeking a master key to break into any iPhone. Rather, law enforcement wants to drop the iPhone off at Apple headquarters and allow for the company to turn over possible information regarding national security threats found on the shooter's device.
The public debate surrounding Apple's decision to fight the court order stands for the larger debate about what the government should have access to in terms of citizens' private papers, Georgetown Law professor Laura Donohue, who specializes in national security and technology law, told Bloomberg BNA during phone calls Feb. 17 and 18.
Donohue said the case can seem like a solitary instance of a bad person who did bad things, but it calls into question the formal distinctions for searches under the Fourth Amendment. Those formal distinctions fall into three categories, Donohue explained: Public versus private, non-content versus content, and domestic versus international.
The FBI's requested search blurs the lines of all three distinctions based on the information contained in a smartphone, she said.
Smartphones contain public information, such as where the phone physically went, and private information that people traditionally stored in their homes before smartphones, Donohue said.
The controversy also highlights domestic privacy interests because she said it calls into question whether a lessened international standard should govern searches for data stored on foreign servers or cloud services.
Finally, Donohue said the search involves non-content called metadata that doesn't enjoy Fourth Amendment protection. Metadata is akin to an envelope, she explained—the contents are protected, but the container is not.
Metadata includes URLs, search history, and e-mail addressing information; content deals with information within actual websites, search results, and e-mail messages, she explained.
These Fourth Amendment distinctions are outdated because they don't account for the quality and quantity of data that new and emerging technology collects, Donohue said.
For example, she cited to the case from the U.S. Court of Appeals for the Sixth Circuit, which Feb. 8 found it constitutional for police to mount a camera on a utility pole and film the outside of a suspect's house for 10 weeks .
While the curtilage of a home is not protected under the Fourth Amendment, Donohue said most people would not consider that length of time a reasonable search.
The U.S. Supreme Court is gradually moving toward a standard that balances privacy and government interests, Donohue said, but it needs to be formalized in case law or codified by Congress.
Without formal guidance, Donohue said the government can basically use technology as an excuse to gain access to information it wouldn't be entitled to if contained inside someone's house. This is resulting in too much power accumulating in the executive branch, she added.
“From a separation of powers problem, this is deeply unsettling,” Donohue said.
Ramos agreed, telling Bloomberg BNA Feb. 18 that many Fourth Amendment provisions are outdated in light of emerging technology.
While Ramos said he supports a balancing test that would weigh the government's interest in national security against individual privacy, he said exceptions exist under the Fourth Amendment to allow for searches where that government interest outweighs individual privacy.
However, procedural safeguards exist under the Fourth Amendment that maintain the integrity of privacy interests, Ramos explained. That includes requiring police to establish probable cause and give proper notification to receive a warrant, he added.
With that in place, Ramos said he didn't understand why law enforcement should be prevented from requesting access to a phone under the Fourth Amendment while the courts and Congress work out how to apply updated parameters for police and prosecutors.
“We're moving fast and we're trying to keep pace,” Ramos explained about prosecutor and police efforts.
Yet in the mean time, Ramos said that people engaged in criminal conduct are well aware that their enterprises are completely protected if they communicate via text and use a passcode on their iPhones—a fact he learned from informants cooperating with prosecutors in ongoing investigations.
That's why Ramos said he asked prosecutors across the nation to show their support by submitting briefs highlighting cases they cannot prosecute without access to encrypted or protected data.
“I think this is the biggest example we have now,” he said of Apple's public decision to fight the court order.
Ramos said he believed that the national security interest of ensuring the shooters were not privy to additional terrorist plots or connected to other terrorist cells within the U.S. outweighs any privacy interest in that specific phone.
“We are picking up the pieces on one of the worst terrorist attacks in the nation,” Ramos said. “I'm very shocked and frustrated that when you balance those issues, especially in this case, it outweighs any interests that a corporation or business would have in making profits and making money.”
Joshua Dratel, a New York City criminal defense attorney, gave Bloomberg BNA an assessment Feb. 17 agreeing with Apple's decision to contest the order.
When individuals make an elective choice to protect their information by choosing to create security measures like setting a passcode that encrypts or protects their information, Dratel said they should receive a heightened privacy interest akin to locking a desk drawer in their home office.
Access to encrypted data is not a new issue for criminal defense attorneys, Dratel said.
Encrypted data presents a challenge to defense attorneys not just because courts treat the issue differently, Dratel said, but the issues surrounding access to that data once police and prosecutors receive it.
It calls into question how to comply with the constitutional warrant requirement that requires particularity, he said.
“The problem with digital information is that it comes packaged in one piece,” Dratel explained.
“Digital information is different from a one-dimensional document,” he said. “By layering it, you can get deeper into information that you wouldn't necessarily think—just by getting someone's phone.”
For example, Dratel pointed to the concept of the third-party doctrine, which he said is often used to gain access to digital information despite how outdated the legal theory is.
The doctrine declines to extend a reasonable expectation of privacy to information voluntarily shared with third parties, such as phone companies, Internet service providers, or e-mail servers, Dratel said. That means that police can acquire all of that information without a warrant, he added.
However, just because people share information with Internet service providers doesn't mean that they are waiving their privacy interests, Dratel said.
The courts and Congress need to reevaluate how they deal with the digital communication realm, Dratel said. In the mean time, he said criminal defense attorneys must stay abreast of cases setting the trend to expand Fourth Amendment protections to digital communications and devices.
“[T]he reason lawyers are behind is because it's not a purely legal issue,” Dratel said. “They have to educate themselves not just on the implications of digital information and what is distinct from ordinary types of information, but how Fourth Amendment law is trying to catch up with that.”
Attorneys are not the only ones struggling to keep up with evolving Fourth Amendment protections.
Mike Brown is the sheriff of Bedford County, Va., a retired federal agent, former District of Columbia cop, and a member of the executive board of directors for the National Sheriffs' Association. He told Bloomberg BNA Feb. 17 that encryption technology hinders law enforcement officers' day-to-day investigations.
Specifically, Brown cited the difficulty of investigating and charging people trafficking in child pornography, who hide behind encryption, he said.
Brown said encryption evolves so quickly and has become so sophisticated that law enforcement on the local, state, and federal levels can't keep up without support from the industry.
At the same time, Brown said he thinks change in Fourth Amendment law is “unavoidable and desirable” to evolve along with technology.
“Present day is not the Fourth Amendment arena of 20, 30, 40 years ago,” Brown wrote in a Feb. 18 e-mail. “That being said, I do not see a need for wholesale change in this amendment—just considerations of certain issues that face our public safety agencies in today’s world.”
Brown said he would favor a case-by-case Fourth Amendment test that would allow for the court to weigh the government's interests in public safety and national security.
“I wouldn't want unfettered access to encrypted data,” Brown said. “We just wish the industry would support us a little more than they have in the past.”
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