Apple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply. Competitors are likely to follow suit.
This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism. Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.
Appellate Writing and Advocacy (AWA) students will immediately recognize that this development could force the courts to address, in more detail, one of the questions raised by this year’s problem set: “May the government compel the cellphone owner to produce the password without violating her Fifth Amendment right against self-incrimination?” The answer to that question is far from obvious. How will the reality of such encryption affect the scope of “exigent circumstances” that might excuse obtaining a warrant under the Supreme Court’s Riley decision?
Also unclear: How far may Congress go in creating a “legislative fix” to the “problem” posed by the new technology? Should it attempt to do so? FBI Director James Comey has called for a national discussion on these issues, and is emerging as a forceful voice in attempting to persuade technology companies to change course voluntarily. His recent speech to the Brookings Institution may be found here: http://www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course. Readers may also wish to take a look at Prof. Orin Kerr’s series of thoughtful blog posts about this issue, available at “the Volokh Conspiracy”. Disclosure/disclaimer: I work for the federal government in my day job. The foregoing is intended to be informational only. I provide it solely in my capacity as an adjunct law professor at MU.