All of which prompts me to hunker down in an area with which
I am more familiar.
The dispute between Apple and the government is in court.
Courts apply law. Now we are getting into my back yard.
Here’s what the Fourth Amendment says:
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.
The first thing that jumps out from the Fourth Amendment is
the word “their.” We have no
constitutional right to be secure in somebody elses’ house.
Suppose I own a home and I have a safe in my home. The
government can’t get into my safe without a warrant. If I sell my home to you,
the government still needs a warrant, because now it’s your home, and the
Fourth Amendment protects you, too.
But suppose that you have no objection to allowing the
government to get into the safe in your home. You can get into the safe. It’s
yours. There is no constitutional issue.
But wait. You don’t know the password. I am long gone, so
you can’t get it from me. How are you going to get into the safe, or how can
the government get into it?
Lets suppose there’s a plate on the safe that says the
password is a three digit number. Easy enough. There are only 999 of them, so
you can enter them one at a time and sooner or later, you’ll hit the right one.
But hold on. There’s another plate the safe that says there
is a bomb inside that will explode if ten wrong passwords are entered within 24
hours.
So you call the safe company, and ask them to come out and
disable the bomb. They say, “Sorry, we don’t do that.” You tell the government
and the government goes to court to get a warrant. The warrant is not to search
your safe. You’ve already given them permission to do that.
No, the government gets a warrant to search the safe company
and to seize the necessary codes or technology that will let them disable the
bomb inside the safe.
They search and search. They ask all the employees. Nobody
knows where the code is or even if there is a code. The boss says there isn’t
any. We don’t know how to disable the bomb. That was one of the selling points
of the safe.
I can visualize myself sitting on the bench while the
government lawyers cross examine the owner of the safe company.
“Now, Mr. Safco, isn’t there someone at your place that can
figure out how to disable the bomb?”
“No one person, no. But if we put old Charlie, and Doc Jones and three or four of our young
techies on it, we might be able to figure it out in a few months.”
About that time I would be coming to the conclusion that the
government was not, in the words of the Fourth Amendment “particularly describing
the place to be searched and the persons or things to be seized.” Case dismissed.
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