Sunday, February 28, 2016


My uninformed effort at untangling the dispute over the San Bernardino iPhone problem has spawned a number of comments by readers who know much more than I about technology.

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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