Encryption and the Fourth Amendment

Apple should be willing to help the US government access information on the iPhones of terrorists and other criminals. I do not think that anyone living under a democratic government has an absolute right to inviolable privacy. If someone’s home is subject to a search warrant issued by a proper judicial process, his other possessions should also be subject to search when properly approved. Apple refuses toallow any search and seizure, even when there is probable cause as determined by a court of law. While the Fourth Amendment is explicitly a protection against unreasonable searches and seizures, the implication is that the government should be allowed to carry out searches and seizures when there is probable cause.

I think that some of the technical objections to requiring breakable encryption on private phones could be overcome by requiring that decrypting the information could be done only by physically connecting to the phone. This could mean that some sophisticated decryption device would have to be connected to an iPhone through a lightning cable, for example. There might be some difficulty enforcing this physical requirement, but smart people should be able to do it. It would mean that your phone could not be hacked from China or Russia, or even by American law enforcement while you are walking down the street with it. Presumably experts could set up the connection protocol so that the phone would sense whether the decryption device was directly connected to the phone, and not connected through the Internet or iTunes.

As things currently stand, I think that Apple should help the FBI access the data on the terrorists’ iPhone. Software updates could come later, as well as hardware updates on new versions of smart phones.

My view includes the requirement that encryption software such as texting apps also should be breakable in some way. Other countries and the military will be able to create unbreakable communication software, but we could make it illegal to use in the US. This is not unlike a restriction on assault weapons. I don’t think that everyone needs to have an AR-15, although that is not currently the law in the US. Even though arms dealers can physically sell AR-15s to anyone, I think there should be restrictions on their right to do so. Similarly, the military and diplomatic services should have encryption that is unbreakable, but private individuals do not need it. The ability to do search and seizure under the Fourth Amendment of the Constitution is more important than individual privacy. National security justifies the use of unbreakable encryption; personal privacy does not.

Advertisements