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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

Technology and Privacy: Apple and the FBI


When we invite the government to encroach into our lives and privacy, we give them a foothold on our freedoms. Part of the reasoning behind the founding fathers’ break from England was to preserve the very freedoms that they held sacred. The fourth amendment was put in place because of the rampant abuse of the Writ of Assistance by the Loyalists. It has evolved over the last two-hundred years to coincide with a technologically evolving world. If our phone is an extension of ourselves, would it not make sense for the fourth amendment to extend its protections to it as well?

            As our democracy ages and matures, the federal government gains increasingly more power over our privacies. Unfortunately, the Supreme Court usually votes on and adopts resolutions that are, “…tied to fixed technological capabilities.” (The Hill) While it wouldn’t be fair to ask the Supreme Court to anticipate the changes of evolving technologies, it does mean that the average American needs to be vigilant in understanding what the lawmakers are passing and how both sides of the argument are playing out at the highest levels.

            When Syed Rizwan Farook and Tashfeen Malik attacked the Inland Regional Center in San Bernardino, California, the F.B.I. had a vested interest in the contents of the phone found at the scene of the crime. The problem with this phone, which was manufactured by Apple, was that it had a password in place that was only known by the deceased. When Apple was asked to help the F.B.I., a dangerous precedent was about to be set dependent on their answer. Regardless of the reasoning by the F.B.I., Apple stood up for the protections of freedoms for their customersand ultimately, John Q. Public as a whole. (NPR)

            While it was certainly their purview to deny the F.B.I.’s request, Apple was bypassed in the end. Unfortunately, this means that the case was dropped, and we’ll never get an official decision from the Supreme Court regarding the use of security features on a phone to bypass a warrant. The precedent that the F.B.I. set is damaging to our democracy as a whole and encroaches on the privacies that our founding fathers put in place when James Madison penned the fourth amendment.

            Fortunately, there have been cases that have been ruled on by The Supreme Court that shed light on the protections that we do have with our phones. In Carpenter v. United States, a group of robbery suspects were tracked by the F.B.I. who placedthe defendant at the scene of multiple robbery locations during the course of one-hundredand twenty-seven days. (Police One) Because the cell phone data was obtained without a warrant, the defendant moved to suppress it as evidence. The district court ruled that he did not have a reasonable expectation of privacy through his cell phone’s historical locator data and the Sixth Circuit Court of Appeals affirmed under the third-party doctrine which states that, “…any information that is shared with another, such as telephone records in the [Smith v. United States, 1979] case, lose any claimed expectation of privacy.”

            This case reached the Supreme Court where it was decided that because the locator information is not truly shared, the police needed probable cause to use the information. More importantly, it was decided that, “Cell phones and cell phoneservices are ‘such a pervasive and insistent part of daily life’ that carryingone is indispensable to daily life.” (Police One) This means that the Supreme Court was officially ruling that a cell phone is essentially an integral part of our life and we have a reasonable expectation of privacy regarding it and its contents.

            By the F.B.I. circumventing the encryption protections that Apple placed on their devices, and then asking them to create a backdoor (which in itself is wrong to ask of a company to do), they attempted to encroach on our freedoms lined out in our Bill of Rights. Something that makes our country different than a country such as China, lies in the privacy that the average citizen enjoys. Technology is going to keep evolving at a rate that our laws must keep up with. In the coming years, one of the ultimate tests our democracy will face is how it protects the privacy of citizens and the extensions of them. If acts like the F.B.I. committed regarding Farooks’ iPhone remain unchecked in the proper channels, we may become the very thing that James Madison attempted to repair over two-hundred years ago.

Sources pulled from:

Selyuhk, A., & Domonoske, C. (2016, February 17). Apple, The FBI And iPhone Encryption: A Look At What's At Stake. Retrieved fromNational Public Radio

Terrence P. Dwyer, E. (2018, December 11) Retrieved from PoliceOne

Turley, J. (2017, November 30). It's too easy for the government to invade privacy in name of security. Retrieved from TheHill