On the "Expectation of Privacy"

In assessing the "search and seizure" of personal data by law enforcement, modern courts have applied the test of "reasonable expectation of privacy." This test implies that if the citizen has used his data in such a way that exposes it to others, for example, used it in a business transaction, then law enforcement may use it against them without restriction.  

The Framers never conceived of this test and might well be surprised by it.  Rather, the tests that they wrote into the Bill of Rights were "reasonable" and "probable cause."  If a search or seizure is "unreasonable," then law enforcement must have a warrant from a court.  The test for the issuance of a warrant is probable cause to believe that a crime has been, not will be, committed.  

These are constitutional tests and they are independent of how the citizen uses his personal information or what his expectations are.  He should not need to do, think, or "expect" anything in order for them to apply.  The tests apply to the behavior of the state, not the expectation of the citizen.  They restrict what the state, the police, may do.  The Bill of Rights places the burden on the state to show that its behavior is lawful, not on the citizen to demonstrate a right or "expectation."  Note that while information obtained in violation of these tests may not be used to convict the citizen of a crime, it is routinely used to investigate, threaten, and coerce, the very things that the Framers feared from a powerful government.  

In some cases, the state, with the tacit consent of the courts, pretends to get a warrant for all searches.  It pretends that it can legitimately collect anything as long as it does not look at it.  However, the Bill of Rights does not limit the tests to searches but also to "seizures." The government operates a data center in Bluffdale Utah.  In a world in which one can put a terabyte of data in one's pocket for $100, the government requires 26 acres of floor space to accommodate the data that it collects world-wide on citizens' communications.  It claims that this seizure is not "unreasonable" and that it does not need a warrant unless it "searches" or looks at the data.  By what reasoning can the arbitrary collection of so much data be called "reasonable?"

I am not hopeful that this view will be argued before the courts or that, even it argued, it will change much.  Nonetheless, I had to argue it.  

US v. Apple

SUNDAY: Comey tries to downplay the dispute, arguing in his new statement that no precedent would be set if Apple would just go along.

"I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other," he said.

"Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure — privacy and safety," he said, adding:

"We simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly."

This sounds like capitulation to me. If this is now about the "victims," then the government made a serious mis-step in attacking Apple in the first place. However, the government's current position does not support a charge of "government over reach."

The issue of how far the government may go in coercing the unwilling and the un-involved to assist them in recovering evidence that they are otherwise entitled to is important and needs to be litigated. We should be glad that Apple is prepared to fight it. Perhaps not since Runnymede has the King had a more formidable adversary. However, this is not the right case to fight it on.

There is ample precedent for un-involved citizens to voluntarily assist the government. It would not be precedent setting for Apple to voluntarily assist with this one mobile in this one case. Apple should "declare victory and go home." It should do here what it can do and fight the government over reach issue when the government is more certainly guilty of it.