Constitution

  • March 21, 2016
  • What would Oliver Wendell Holmes, Jr. do?

    What would Oliver Wendell Holmes, Jr. do?

    Apple and the Justice Department will be back in court this week arguing about whether Apple has to obey a court order to unlock an iPhone that belonged to one of the San Bernardino terrorists who opened up automatic weapon fire on colleagues in a work place last December, killing many. Although I am not an attorney and have no formal training in constitutional law, I’ll weight in because I have a hunch that resolving the case will result in new law.

    The government is relying on several strategies in the case, notably, the All Writs Act, to compel Apple to unlock the phone. All Writs basically says that a judge can compel a defendant to obey a court order. People who refuse to do so are held in contempt of court and the penalties vary but the point of all this is that once a court of competent jurisdiction rules, the ruling has the force of law behind it and must be obeyed.

    In my reading of the situation, it strikes me that the wrong litigants are in front of the judge. Certainly, the Justice Department should be there trying to gather data about a crime. But it’s not Apple’s phone. The phone belongs to a dead person who obviously can’t be there so the point should be moot. Again I am not a lawyer so take this with a pound of salt. But, let’s ask the next question that everyone seems to be shying away from but which really ought to be asked. What if the owner of the phone was sitting in court, simply refusing to comply with the court’s order to reveal the contents of the phone by entering a password?

    Things get complicated but also clarify quickly in this scenario. An individual has a first amendment right to speak freely and that includes the ability to refuse to speak if such action would cause the person to say something he or she found antithetical to personal beliefs. Apple is relying on this idea to defend its right to not write code that would lead to unlocking the phone. Also, there’s a fifth amendment right against self-incrimination meaning not only that you can’t be forced to reveal something about yourself that could implicate you in a crime but also, that by invoking your fifth amendment privilege no court can take that action as an admission of guilt.

    So where does new law come into the picture? It’s simply this. We are evolving at a rapid clip to a point that in the intermediate future computers will not only be part of our lives, they will be part of ourselves. We are already using handheld technology as extensions of our minds. The Internet is functioning in part as an extension of our memories, digital assistants get information for us and help us resolve ambiguities, our use patterns provide a trail of places visited both virtual and physical. Could all this be used against us? In labs around the world, researchers are tinkering with ways to make technology substitute for diseased or malfunctioning organs such as eyes and ears. Face it, we are becoming part human and part technology and that reality will only become more apparent over time.

    So how does this apply to the Apple case? Simply that if you or I buy a bit of technology that is widely known to have encryption and that encryption is presented as a way to keep your innermost thoughts and mental property secret, then in a real sense that device becomes an extension of your mind and has all of the constitutional protections enumerated in the Bill of Rights.

    In the future, I think it will be accepted that your device can’t testify against your will or against you and I think that is one possible outcome of this litigation. However, it needs to be said, that such an interpretation would require that the Supreme Court, which is currently down one player, review the case and the possibility of a 4-4 deadlock on this and many other cases looms for the indefinite future.

    Nonetheless, I don’t see how a court that famously granted personhood to corporations could fail to do so for personal devices. But I am not a lawyer. Or a politician.

     

     

     

    Published: 2 years ago