The headline might be a bit jarring, but what might be the unintended consequences of the introduction of unsearchable smartphones? Could they, say, set in motion a legal review that puts in doubt the right to abortion? The question occurs at least to us in the wake of the announcement by Apple and Google that they’ll put some smartphone data “out of reach of police and the courts,” as the Wall Street Journal put it in a dispatch on rising concern the announcement is causing among the authorities.
The idea of these new systems is that once the owner of the phone enters a passcode, there will be no technical way for Apple or Google to get at certain of its data. They won’t be able to answer a search warrant for data on even if they want to. “It’s not technically feasible for us to respond to government warrants for the extraction of this data,” Apple’s website says. “People have a right to privacy,” the Journal quotes Apple’s chairman, Tim Cook, as saying.
Well, up to a point. And just where might that point actually lie in America’s fundamental law? Has that question been settled for all time? The word “privacy,” after all, does not actually appear in the Constitution. It was discovered only recently — 1965, if one fixes on the most famous case — among the shadows and penumbras of the Bill of Rights. That was the case, known as Griswold v. Connecticut, that vouchsafed the right of a woman to birth control.
Out of that case came the Supreme Court’s most famous privacy pronouncement, Roe v. Wade, which held that the privacy right was so great that the government could not get past it even to protect the life of an unborn child. That has become settled law, to use the phrase that one Supreme Court nominee after another seems to be comfortable with. But how long will the privacy right remain settled in the face of the kind of challenges presented by Apple’s new contraptions.
After all, even the most famous article of the Bill of Rights that deals with what might be construed as privacy secures persons in America against searches that are “unreasonable.” It requires warrants to be issued explaining the object of the search. The development of a telephone that can not be searched even with a warrant, well, this is going to lead to some situations in which people are going to start to wonder about the logic of it.
That’s because the new systems, as the Journal reported, “will make it harder, if not impossible, to solve some cases.” One person it quoted calls the phones “the equivalent of a house that can’t be searched, or a car trunk that could never be opened.” The Journal quotes a former FBI general counsel, Andrew Weissmann, as calling Apple’s announcement outrageous, because Apple is “announcing to criminals, ‘use this,’” he said. “You could have people who are defrauded, threatened, or even at the extreme, terrorists using it.”
The Journal also quotes a former head of the FBI’s criminal investigations division, Ronald Hosko, as saying that the level of privacy in the new phones is “wonderful until it’s your kid who is kidnapped and being abused, and because of the technology, we can’t get to them.” So we’re just wondering whether we’ll get to a point where our country starts re-thinking the whole question of “privacy.” Where is it seated in our law, where does it fit in the social contract, what is the purpose of it, and how far do we want to take it?