The Federal Bureau of Investigation’s attempts to unlock an iPhone belonging to one of the San Bernardino mass shooters have led to a national discussion on what concessions should be made with respect to individual privacy in pursuit of the greater safety of the nation. Generally, the issue at the center of the legal battle between the FBI and Apple, the makers of the iPhone, is whether or not Apple should be compelled to develop software to specifically aid the FBI in accessing the data on the phone. The FBI says the information could be key in determining if others were involved in planning the San Bernardino attack. Apple argues that to do so would create a weakness for their phones, which could be used to access any iPhone data anywhere.
There is a greater issue at stake as well, that of the privacy of people charged with crimes in the future. Contrary to how the fight between Apple and the government may be perceived, the government is not just seeking the means to unlock one iPhone. At the moment, the government has multiple phones linked to different investigations that they could theoretically gain access to using the software it is asking Apple to create, including the iPhone of a victim in one case. Therefore, if granted the means to gain access to the phone, there would be far reaching consequences.
In a 2014 case, Riley v. California, the Supreme Court decided that the police need a search warrant in order to search the cellphone of a person who is under arrest. Therefore, even if law enforcement officials had the means to access data on cell phones that are locked or encrypted, they would need a warrant to do so for a cell phone belonging to an arrested person. This offers some protection to ordinary citizens because warrants are supposed to be supported by probable cause and reviewed by a judge. If the government accesses a cell phone without a warrant, they cannot later use information from that phone in a prosecution against the cell phone owner. However, the government can use the information they receive in the prosecution of others, if they had no expectation of privacy in the information contained in the phone.
The question of whether Apple should be forced to create software it does not currently possess in order to aid the government in an investigation is not likely going to legally change the requirement that the government obtain a search warrant before searching the cell phone of a person who is under arrest. If the software is created, it could affect the ease with which the government, in the course of an investigation, can overcome steps taken by a private individual to secure their cell phone and data through even something as simple as a password. Even if the government never uses this information in a criminal trial against the phone owner, the invasion of privacy is still concerning.
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