The iPhone Case and the Future of Civil Liberties

[Commentary] It is not often that a legal battle over smartphone firmware captures the national imagination, but such is the case as the FBI tries to access the data contained on suspected San Bernadino (CA) shooter Syed Farook’s iPhone. The feds want Apple to help it break into the phone, under the authority of an obscure 1789 law called the All Writs Act. Thus an ancient statute meets an icon of the digital age.

This odd pairing is strangely appropriate, as the Apple case, and others like it, will help to determine whether our hard-fought gains in civil liberties will survive today’s technology. This case is one of several pending that may guide the law toward a point where every digital interaction is within reach of the government. Or, by contrast, these cases could set limits on the ability of the government to break security technologies, such as passwords and encryption, that guard us from prying eyes of domestic and foreign governments, criminals, and terrorists. What principles will guide the courts facing novel questions about surveillance in an era when our data is held by dozens of companies? Law enforcement wants to analogize to bank and telephone records, which it can access without warrants under what is known as the third-party doctrine. But there is reason to resist this logic today. It has become essentially impossible for most Americans to avoid committing their lives to the digital record. Access to all of this data would mark a vast expansion of the government’s power to tear down the walls of privacy. It is therefore essential that the public support tech firms standing up for privacy, even as we may have good reason to question those companies’ motives.

[Neil M. Richards is Professor of Law at Washington University in St. Louis (MO)]