In the standoff between Apple and the FBI, each side is recruiting powerful allies and waging a war of words. As the story unfolds, we’ll fact-check the boldest claims, starting with this one by FBI Director James Comey.
“We’re moving to a place where there are warrantproof places in our life,” Comey testified before the House Judiciary Committee. “That’s a world we’ve never lived in before in the United States that has profound consequences for public safety, and all I’m saying is, we shouldn’t drift there.”
Comey’s claim is a bold one, with two parts: one, that the iPhone is a warrantproof place; and two, that is historically unprecedented.
“Comey is 99.99 percent right,” says Orin Kerr, a law professor at George Washington University who is an expert on the Constitution, technology and police powers. In just about every instance, he says, “if the government has a warrant, they can break in. They can break into a house. They can break into a safe.”
Though Kerr does suggest one curious counterexample: the 1985 Supreme Court case of Winston v. Lee.
It was an armed robbery case. On July 18, 1982, at about 1 a.m., a store owner named Ralph Watkinson was closing shop for the night. As he was locking the door, a gunman approached him. Watkinson, too, had a gun, and both of them fired. Watkinson managed to hit the other man in the chest, and the would-be robber fled.
Eight blocks away from the crime scene, police found Rudolph Lee, who happened to have a bullet lodged in the left part of his chest. They suspected he was the robber. But to prove it, they needed to go into his body and get that bullet, to show that it matched the store owner’s gun.
“When it comes to physical surgery,” says Kerr, “forcing somebody to have something extracted from inside of their body, that has to be judged on a case-by-case basis. You have to figure out: How important is it to get this evidence from inside the person; how dangerous is the surgery?”
The Supreme Court ruled against the investigators, saying:
“We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be ‘reasonable’ under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.”
For this case to apply to the Apple-FBI debate, Kerr says, you’d have to argue that the iPhone is more than just a phone, but a part of your brain — your body. “Some people may think of it that way,” he says, “but that’s pretty different from saying it requires surgery to look at the phone.”
Apple lawyer Theodore Boutrous tells NPR that Comey’s rhetoric about warrantproof space is just that — rhetoric — because the FBI does have a warrant. “The government got a warrant for the phone. It seized the phone,” Boutrous says. Apple is saying: Go ahead and break in; just don’t expect us to help.
Kerr argues this line of reasoning is irrelevant: A warrant on paper doesn’t matter, if Apple is creating digital locks so powerful that for all intents and purposes, no one can break in without the user’s permission. That’s no longer something in the realm of science fiction but mathematically possible.
“I think the FBI is not just worried about 2016. They’re worried about 2017, 2018, or five or 20 or 30 years ahead,” Kerr says.
While Comey may be looking to the future, Boutrous counters that the FBI director is overstating the past.
“For most of American history, there was a warrant-free zone regarding people’s communication across the country,” Boutrous says. “There weren’t surveillance techniques. There weren’t ways to capture what people were saying to each other. And so the government has become so used to having surveillance techniques, they forget this is a relatively new development.”
Before telephones became popular in the 20th century, conversations between citizens were private. Over time, it took vigorous debate before the Supreme Court paved the way for wiretapping of phone conversations. And Stanford law professor David Sklansky says it is not a given that every new technology must be police-friendly or police-accessible.
Compared with telephones of yore, the iPhone “has a lot more information in it and different kinds of information and people use it in different ways,” Sklansky says. It’s a mishmash of personal diary, physical tracker, photo album, health record repository on top of a phone.
So just because courts decided eavesdropping on phones serves the public interest, Sklansky says, that doesn’t dictate what should happen with the iPhone.