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Monday, February 29, 2016

Why the Fourth Amendment Should Be Part of the Apple Case

The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.

By way of background, the U.S. government is seeking a court order directing Apple to help “unlock” an encrypted iPhone previously used by one of the San Bernardino terrorists. The resulting public debate has focused on arguments that the desired order would assist law enforcement while also jeopardizing the security of many smartphones. That sounds like a perfect opportunity to reflect on the constitutional provision that is most closely applicable: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” If the government orders “seizures” of Apple’s programmers and “searches” of the encrypted device, then “the people” might no longer be “secure” in a precious set of “effects”—namely, their iPhones.

Yet Apple’s recent filing doesn’t advance a Fourth Amendment claim. And it’s not because Apple was shy about making constitutional arguments: while focusing on statutory issues, Apple also advanced arguments based on the First Amendment’s guarantee of free speech and the Fifth Amendment’s guarantee of due process. But those provisions don’t speak to the fundamental conflict of interests at issue in the case. As Apple wrote in its filing, “There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public.” What constitutional provision does that call to mind? Apple further argued that people’s “personal information” should be “secure” and that “[n]o reasonable person” would approve of the government’s position. It’s as though Apple is subliminally channeling the Fourth Amendment’s text and purpose.

Of course, there’s a reason why Apple didn’t raise any Fourth Amendment arguments: under current case law, such arguments would be very hard to make. Fourth Amendment cases have generally focused on individuals’ “reasonable expectations of privacy” and “constitutionally protected places.” That sounds sensible, and it often is. By focusing on individual privacy, the Court has indirectly tried to promote “the right of the people to be secure” against governmental power. But in light of digital technologies, the connection between individual privacy and governmental power has frayed. It’s now possible for the government to obtain enormous power, undermining the people’s security, without significantly infringing on any individual’s privacy. If Fourth Amendment law is going to keep up with these changes, it needs to evolve: rather than requiring or focusing on direct violations of individual privacy, courts should attend to the dangers of governmental power and the risks of its abuse.

Take the Apple case. The encrypted iPhone is governmental property, the county that owns the phone wants it to be searched, and the government has obtained a warrant. So there’s no significant personal privacy interest in the contents of the device, much less a privacy interest running to Apple or any particular consumer. And even if there were such a personal privacy interest, it would be outweighed by countervailing law-enforcement interests. These points explain why Apple isn’t making a Fourth Amendment argument, but they miss what the Apple case is all about. Without infringing on any individual’s privacy, the government may obtain an investigative power that could be abused in other contexts, to the detriment of privacy as well as other values. It is impossible to assess those risks of abuse by asking only whether the government’s requested order would in itself invade individual privacy. For instance, the Fourth Amendment should care about who would store or control access to the code that the government desires—much as debates about the NSA telephonic metadata program focused in part on whether customer metadata would be stored in private or governmental hands. As Apple wrote at the start of its filing, “This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power. . . .”

To put the Fourth Amendment’s relevance to the Apple case in historical perspective, consider the “writs of assistance” that so enraged some founders. Those writs allowed British officials to conscript bystanders into searching homes for smuggled goods. In that eighteenth-century context, significant expansions of governmental power tended to be accompanied by grave infringements on privacy. As a result, a prohibition on invasions of privacy, like ransacking a home pursuant to a writ of assistance, could check governmental power. Today, by contrast, the government can conscript Apple engineers in order to gain the power to access a huge number of devices—each of which has more personal information than the average house. So a search or seizure that in itself has only limited privacy implications (here, hacking the encrypted iPhone) may turn out to yield an unreasonable risk that governmental power will be abused, contrary to the purpose of the Fourth Amendment.

The writs of assistance shed light on the government’s request for assistance in the Apple litigation—which, incidentally, would issue under the founding-era “All Writs Act.” Whether viewed as constitutional avoidance or simply as part of the background conditions that gave rise to the All Writs Act, the Fourth Amendment and its history ought to figure in. A similar point has been made before: in United States v. New York Telephone Co., a precedent at the center of the Apple litigation, Justice John Paul Stevens invoked the writs of assistance and argued against an order directing a telephone company to install pen registers. But Stevens was in dissent, and the majority upheld the order. Echoing the Fourth Amendment, the majority plausibly held that no “unreasonable” burdens were being imposed. Yet digital technologies have changed the implications of the government’s writ authority. It’s time to update the existing approach to Fourth Amendment reasonableness in light of these new technologies. And that means paying more attention to power.

Posted by Richard M. Re on February 29, 2016 at 07:30 AM | Permalink


Interesting post! Thank You!

Posted by: mac software | Sep 12, 2016 6:27:43 AM

Richard: The AWA definitely requires magistrates to answer fairly large questions, such as "how much effort is too much effort to ask a private company to expend on behalf of the government?" However, I think this is a relatively manageable question, which can be answered by using the traditional tools of statutory interpretation and case law (even if there is not a ton of case law on the AWA.) The question of how much power the government may accrue before it becomes dangerous or prone to abuse strikes me as a pure policy question that most courts are not well-positioned to answer.

I also believe our system could benefit from a more nuanced system of privacy protections. I look forward to reading your thoughts on that in the future.

Posted by: Rebecca Lipman | Mar 1, 2016 2:35:32 PM

Rebecca: Thanks for these questions. On point 1, note that the All Writs Act litigation involving the iPhone already involves magistrates addressing big policy points. In any event, most fundamental points would move up the judicial hierarchy and get adjudicated by appellate courts -- as the iPhone litigation again illustrates. On point 2, I do think that we need other safeguarding mechanisms. I hope to write more on how that might work.

Posted by: Richard | Mar 1, 2016 2:02:22 PM

Richard, thanks for the interesting post. I have two questions about it:

1. Your argument suggests that even if a magistrate finds that probable cause exists, she should not issue a warrant if she believes the warrant would create a significant increase in government power, or a risk of government abuse. Is this an appropriate inquiry for a magistrate? Aren't magistrates much better equipped to answer questions that purely turn on an individual's interests, rather than big picture policy questions?

2. Your argument seems to distrust the traditional use of warrants as the primary safeguard against governmental invasions of privacy. Do you recommend another privacy-protective mechanism besides warrants? Or would you just advocate for the issuance of fewer warrants?

Posted by: Rebecca Lipman | Mar 1, 2016 9:58:54 AM

The pagination in the Table of Contents of the Apple Motion is weird. Is the three digit numbers there standard? (e.g., IIC is Page "100").

The use of the word "conscription" here has emotional power. The Volokh Conspiracy link, e.g., has comments raising 13A arguments. The motion also raises the possibility that this will be the tip of the "conscription" iceberg. I'll wait and see but usage of this for individual warrants of this sort might be acceptable.

Posted by: Joe | Feb 29, 2016 6:00:02 PM

Brad, the limiting principle under the AWA has traditionally been the unreasonable burden test, which I take to be somewhat like the limiting principle on subpoenas. As for particularity, I don't think that's an issue: The requirements of a warrant are the same regardless of whether the government needs a warrant or not. In the case of cell phone search, the most common practice seems to be to describe the place to be searched as the phone itself, with the information to be seized as the evidence of the crime that there is probable cause to believe is on the phone.

Posted by: Orin Kerr | Feb 29, 2016 5:33:01 PM

I certainly trust that you are right about what the precedents hold but I find the outcome odd and somewhat disturbing when coupled with the government's AWA argument.

If a magistrate can issue a warrant for not-a-search upon probable cause that some crime has been committed and then it can use its All Writs Act authority to compel third parties to assist the government in carrying out the ordered not-a-search, where's the limiting principle? Separately, how does one describe with particularity the place to be searched when issuing a warrant for not-a-search?

Posted by: Brad | Feb 29, 2016 3:42:11 PM

Asher: Though it's not a complete response, let me note for now that the larger implications of my argument are concerned with digital surveillance in general and are not limited to the Apple case. So the fact that the government's argument here parallels successful arguments in other digital contexts might mean that we should revise the law across the board. (Again, I am working on a long-form piece on this.)

One other note on your last sentence. You write: "It seems to me that what's concerning here is that we now have these abundant devices, filled with all sorts of data, that can't be searched even if there's probable cause to believe they contain evidence of crimes." That is indeed an important point, but our Fourth Amendment analysis should match that interest up against all the costs and risks on the other side, including the risks of expanding governmental power to access an unprecedented amount of information. If you agree with that, then you agree with my basic framework -- and reject a lot of current Fourth Amendment doctrine.

Posted by: Richard | Feb 29, 2016 3:41:12 PM

I'm very confused. Say the government gets the code. I take it that anytime they encounter a locked phone as to which the owner hasn't consented to a search, as to which there aren't exigent circumstances (e.g, probable cause to believe that the owner will remotely wipe the phone), they need a search warrant to *use* this precious code to *search* the phone. Just acquiring the technical means to perform a search doesn't get them anywhere, by itself; they still have to be doing a lawful search in the first place. Getting the code, then, will put them in the same position, with respect to Apple's phones, that they're in with respect to virtually any physical space that might contain evidence, as well as telephone conversations, possibly email servers. That is, with respect to just about everything besides an iPhone, with a warrant, a search is feasible, and without one, subject to various exceptions, a search is illegal. What are the "power concerns" about putting some cellphones on an equal footing with just about any other place/thing in which evidence can be found? It seems to me that what's concerning here is that we now have these abundant devices, filled with all sorts of data, that can't be searched even if there's probable cause to believe they contain evidence of crimes.

Posted by: Asher Steinberg | Feb 29, 2016 2:05:04 PM

Brad, it's still a search. It's just a reasonable search, both because there is presumably valid third-party consent and a search warrant. More broadly, I'm not sure how the use of a search warrant is collusive. New York Telephone indicates that a search warrant can be used, and third-party assistance required, even when the act turns out not to be a search at all. In NY Telephone, the issue was just installing a Pen Register, which was soon-after held to be no search under the Fourth Amendment.

Posted by: Orin Kerr | Feb 29, 2016 1:22:41 PM

Isn't it a bit strange to focus on the "valid search warrant" angle when we have two governments here fully cooperating with each other and no hostile party to serve the warrant against? It seems somehow collusive to seek a search warrent solely for the purpose of bolstering the case for dragooning a third party into helping with the search which isn't really search to begin with because again the nominal searchee is fully on board with the effort.

Posted by: Brad | Feb 29, 2016 1:10:26 PM

Orin: As usual, you've made many insightful points; and I don't have time to discuss to them all now. One small response: I think that requiring a warrant in the Apple case and related cases is indeed an important mark in favor of reasonableness. But it's not enough. Warrants typically issue without considering the kinds of power concerns that I'm worried about and that are at issue in the case.

Posted by: Richard | Feb 29, 2016 12:02:20 PM

Marty: The government apparently -- and quite understandably -- wants Apple to use the code on demand, at least in any situation where there is a warrant, as evidenced by the other cases in the pipeline. That is a big power, and it should be reviewed for Fourth Amendment reasonableness. Plus, the code will likely leak out of Apple, as you noted in your Just Security post. So the US government, among others, could very well get it. Finally, a government demand for the code, or parts of it, seems quite realistic -- so it would be important, not just theoretically but practically, to know that the Fourth Amendment would apply in that situation. Do you agree that it should? Again, if you do, then you must agree with my critique of the doctrine (which, by the way, I am currently writing up in an article).

Posted by: Richard | Feb 29, 2016 11:56:39 AM

Richard, very interesting post. Three thoughts:

1) I think existing doctrine already looks beyond just the question of law enforcement need to the broader implications of the search. It just does so in a way that doesn't provide Apple an argument to refuse assistance here. See, e.g., Winston v. Lee, 470 U.S. 753 (1985), (deciding, on general reasonableness grounds, that a warrant based on probable cause is insufficient to permit the government to conduct surgery on a criminal suspect to withdraw a bullet when doing so might kill him and the bullet is of only limited evidentiary help).

2) When you say that the order creates " an unreasonable risk that governmental power will be abused, contrary to the purpose of the Fourth Amendment," you appear to be overlooking that the Fourth Amendment already requires a search warrant in all of those future cases. Doesn't that change the analysis? We don't say that crow bars violate the Fourth Amendment because "there is an unreasonable risk the government will abuse them by breaking into homes, in violation of the purpose of the Fourth Amendment." Instead, we look to what legal process the government must have when it enters homes -- whether with crow bars or without them.

3) If you're going to update the Fourth Amendment in response to the new technology, doesn't the principle of equilibrium-adjustment point in the other direction? The new technology is encryption that blocks government power, thwarting the execution of search warrants based on probable cause, shifting the balance away from the government. Companies can design products so that company assistance is required to execute searches, replacing a world of government-only searches with a world of provider-assisted searches. The government is trying to lessen the consequences of the shift in the equilibrium. I take you to be suggesting an equilibrium-adjustment argument, but one that accepts the shift in the equilibrium as a given and then tries to maintain the shifted equilibrium. But why pick the shifted equilibrium point first established around 2014 as the reference point, as compared to the pre-2014 equilibrium?

Posted by: Orin Kerr | Feb 29, 2016 11:55:52 AM


I suppose one could imagine a technological mandate that might make communications so insecure and vulnerable to unlawful interception that it might for that reason be struck down -- perhaps under the Commerce Clause as unreasonable, or perhaps under the Fourth Amendment because it fails to make "the people" "secure" against "unreasonable search and seizure." But, I certainly don't think that a regulation is invalid merely because it requires those who market a product in interstate commerce to use technology that permits the execution of a valid search warrant. If that is wrong, then I suppose the Communications Assistance for Law Enforcement Act is no less vulnerable to constitutional attack than the order now sought against Apple.


Posted by: Larry Rosenthal | Feb 29, 2016 11:43:03 AM

I don't believe the government is seeking to obtain any code from Apple.

Posted by: Marty Lederman | Feb 29, 2016 11:32:28 AM

On Larry's interesting analysis: let's imagine that Congress passed a law requiring that all electronic communications -- email, phone calls, texts, everything -- be designed in such a way that they must be routed through the NSA's databanks. Should that pose a Fourth Amendment problem and so be viewed for reasonableness? Or would you view it as just another Commerce Clause regulation?

Posted by: Richard | Feb 29, 2016 11:31:43 AM

Thanks to all for the comments. One brief response to Marty, who wrote: "Here, the only 'investigative power' at issue (as I understand it) would be the power to require Apple to, in effect, disable the 'auto-erase' feature on the iPhone of an owner that wants the feature disabled."

Let's assume for a moment that that isn't true, perhaps because the government will acquire the code that it has asked Apple to produce. In that scenario, the government would have acquired the technical ability to hack any of the many iPhones susceptible to the hack. On that assumption, do you agree that there would be a large investigative power properly regulated by the Fourth Amendment?

If yes, then I think we agree on the fundamentals -- and would have established at least one limit on what the government can ask for cases like this one. The question then becomes: how different are the actual facts from the situation we just assumed?

Posted by: Richard | Feb 29, 2016 11:19:24 AM

What this post overlooks, in my view, is that the government seeks an order requiring Apple's cooperation so that it can execute a concededly valid search warrant. That is far different from a writ of assistance. In terms of history, there is abundant evidence of the framers' acceptance of adequately particularized warrants, as Thomas Davies demonstrated in "Recovering the Original Fourth Amendment." It is highly doubtful that the framers thought that anyone ought to be able to resist execution of an otherwise valid search warrant, even if that might requires a measure of cooperation with those charged with execution of the warrant. The underlying dispute here is whether Apple should be permitted to market a product that is immune to scrutiny by valid search warrant. In the Communications Assistance for Law Enforcement Act, for example, Congress has mandated that landline providers utilize technology that accommodates wiretaps -- and no one thinks that this amounts to a writ of assistance or involuntary servitude. The law if full of mandates governing the manner in which products must be designed and marketed, such as the requirement that automobile manufacturers design and install airbags does not amount to involuntary servitude. A mandate that products marketed in interstate commerce not pose what are regarded as undue threats to public safety is a classic exercise of the commerce power, not a writ of assistance or involuntary servitude.

It may be fair to tax the government with making its policy arguments through case-by-case adjudication under the All Writs Act rather than seeking legislation akin to the Communications Assistance for Law Enforcement Act -- both the Bush and Obama administrations have justifiably provoked considerable public suspicion by their failure to make counter-terrorism policy in a transparent fashion. But that aside, I see no plausible constitutional policy to a rule that requires those who market products in interstate commerce to refrain from designing products that are immune to scrutiny by valid search warrant, adequately particularized and supported by probable cause.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Feb 29, 2016 10:59:48 AM

"Without infringing on any individual’s privacy, the government may obtain an investigative power that could be abused in other contexts." How so? Here, the only "investigative power" at issue (as I understand it) would be the power to require Apple to, in effect, disable the “auto-erase” feature on the iPhone of an owner that wants the feature disabled.

Posted by: Marty Lederman | Feb 29, 2016 10:48:28 AM


This is interesting. I wonder if involuntary servitude is also an apt metaphor. It is one thing for the police to search or seize, and I suppose witnesses are traditionally asked to provide existing information, so disclosure of a key, a location of property, or a combination is not a distinctive burden. Similarly, the government can take private property for public use, with just compensation. But requiring a company to make new products by court order is remarkable. Again, it is one thing for the government to say "sorry, we need your factory," take it, and operate it themselves, quite another for a court to order someone to, say, deliver 100 M-1 tanks a month on pain of contempt. It is well beyond a search, seizure, or taking. My bottom line is that if the government wants to compel people against their will to do complex work for public benefit, I think Congress should first authorize their conscription into the Army.


Posted by: Jack Chin | Feb 29, 2016 10:42:31 AM

Interesting post, Richard -- as always.

But I wonder if you're eliding a thread of 4th Amendment cases that already adopts a more structural (and thus less individual) understanding of the Amendment. Just read Stone v. Powell, for example. No way to read that as being about individual privacy protections. No way at all. It's about structural limitations on government through and through.

Posted by: Goober | Feb 29, 2016 10:26:05 AM

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