The Department of Justice, in a March 10 filing, accused Apple of outrightly making “warrant proof” devices, and accused Apple of obstruction of justice by making these devices so secure that they could not be searched, even with a warrant. While these words belonged to DOJ, I think Apple should own them. If you study our state laws, federal laws, and international treaties, you’ll see many examples of intellectual property that actually are protected against warrants. Yes, there are things in this country that are deemed warrant proof.
As per The State Department, Article 27.3 of the Vienna Convention on Diplomatic Relations states, a diplomatic pouch “shall not be opened or detained”. In other words, it’s warrant proof. No law enforcement agency in our country is permitted – under international treaty – to open a diplomatic pouch, and any warrants issued are null and void. Guidelines even permit for unaccompanied diplomatic pouches that are traveling without a diplomat or courier, which even further emphasizes the impetus for security of such pouches: they should have locks, and strong ones at that. Do we still have spying? Absolutely, and it’s illegal. It is not only reasonable then, but important to have a device like the iPhone – secure against illegal search and seizure.
Descending from international treaties to federal law, The Privacy Protection Act of 1980 (“PPA”) protects journalists from being forced, even under warrant, from being required to turn over documents, materials, or information about sources to law enforcement. This arose from a 1978 case that involved a warranted search of a newsroom to obtain photos of a demonstration at which multiple police officers were injured. It was determined that warrants like this should be illegal, and this act made journalists’ documents and sources warrant proof.
Under many state’s medical privacy laws, or rules of evidence, physician-patient records and communication are considered privileged, and are essentially warrant proof. Law enforcement does not have the right to subpoena or use these records under state jurisdiction. The same is often true of attorney-client privilege; an attorney’s records of their clients are essentially warrant proof.
There are other examples that could be mentioned, but the point is that our country recognizes many laws and international treaties that support the concept of warrant proof as a valid concept. It is not only well within Apple’s rights to produce a product that happens to be warrant-proof, but it’s actually Apple’s responsibility to create a product that’s capable of enforcing the highest level of security permitted by our country’s laws… not the lowest. Apple is well within not only their rights, but in practices that support and place appropriate locks consistent with the levels of privacy our country recognizes. These products protect everyone – diplomats, doctors, journalists, as well as all of us. Of course they should be this secure. If our own country recognizes warrant proof as a thing, of course our technology should too.
We, as everyday Americans, should also encourage the idea of warrant proof places. The DOJ believes, quite erroneously, that the Fourth Amendment gives them the right to any evidence or information they desire with a warrant. The Bill of Rights did not grant rights to the government; it protected the rights of Americans from the overreach that was expected to come from government. Our most intimate thoughts, our private conversations, our ideas, our -intent- are all things our phone tracks. These are concepts that must remain private (if we choose to protect them) for any functioning free society. In today’s technological landscape, we are no longer giving up just our current or future activity under warrant, but for the first time in history, making potentially years of our life retroactively searchable by law enforcement. Things are recorded in ways today that no one would have imagined, even when CALEA was passed. Past conversations were never obtainable by warrant because they were ephemeral – they ceased to exist after they were finished. The capability that DOJ is asserting is that our very lives and identities – going back across years – are subject to search. The Constitution never permitted this.
The bottom line is this: Our country actually recognizes warrant proof data, and Apple has every right and ethical obligation to recognize it in the design of their products. As Americans, we should be demanding our thoughts, conversations, and identities be protected with the highest level of security. This isn’t just about credit cards.