If a court issues a search warrant for a building, and the building owner never had a key made for the door, does that give the owner the right to refuse to honor the search warrant?
It does if you think like the Apple computer company, which has denied an FBI request to access to information contained in an Apple iPhone used by one of the terrorists in the Dec. 2 San Bernardino shooting.
A federal court judge has ordered the company to allow the FBI to gain access to the dead suspect's phone, which is encryption-protected. Providing access would apparently require the company to create a technological "back door" to the phone in order to release its contents.
Forcing the company to develop that technology, some fear, could undermine the effectiveness of its security system and open a Pandora's Box of government seeking access to our private records.
The first claim has merit. The second less so.
The Fourth Amendment to the Constitution already protects citizens against “unreasonable searches and seizures," and stipulates that a search warrant cannot be issued without probable cause.
That's the protection we have against unreasonable government invasions of our privacy. But it's also what gives the government the right, under strict rules, to invade our privacy in a legitimate government interest — such as finding out information about criminal acts.
In this case, the government is legally justified in wanting to access the San Bernardino shooter's phone records. That should be enough to force the company to comply with the order, just as it would be if the search warrant applied to a building.
If police bearing a search warrant and having probable cause can be thwarted in their efforts to pursue criminal suspects by a company's ability to refuse access, then it will be much easier for criminals to evade investigations. All they'll have to do is make sure they conduct all their illegal dealings on an iPhone.
To protect its technology and its market share of the phone market, Apple should find a way to temporarily decipher the encryption, but not share how it did so with the government. And to ensure the government doesn't take advantage of this access, companies should work with Congress on parameters for when the backdoor technology can be used.
Government shouldn’t have a skeleton key to all our personal secrets. But it also shouldn’t be shackled by technology in its efforts to conduct legitimate criminal investigations.