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Does the Constitution Protect Apple from Unlocking The iPhone?

Last time, in what was arguably a “puff piece” about old judicial friends, I had the audacity to mention strict constructionism, thus unintentionally unleashing a torrent of umbrage. The Originalists defended their hero Scalia with a variety of indignant comments to the effect that “The Constitution is clear, and anyone who reads anything extra into it is stewpud.”

Hmmmm. Okay.  Let’s go. Welcome to law school. (Warning: this ain’t no puff piece.)

Please answer this simple law school exam question: Strictly speaking, does the Fourth Amendment protect Apple from unlocking an iPhone when ordered to do so by the Government, to help them fight ISIS terrorism? Or not? But since it’s law school, a simple “yes” or “no” won’t do. Instead you have to explain your answer.

I challenge all the strict constructionists out there to show me how it works when you stick to the simple 54 words  [<–click to read them] that are the Fourth Amendment, without projecting their own values and the practical need to stop terrorists all over the place.

Simply put, it’s impossible. Period.

I can hear the trolls from here, stirring in their dingy basements, frantically tapping away on their keyboards. They just get so upset when you make them think things. I wonder what they would have to say about how the Doctrine of Absurdity applies to Originalism? Seems kind of apt.

Since so many of you believe so very strongly that everything you ever needed to know about the Constitution is written right there on the page, I stand to be educated. This is law school, after all. Go ahead. Please explain to me how it works with Apple. That should be easy since it is all so very plain and clear. Except, it’s not.

I admit I’m biased. It might be the result of listening to my Constitutional Law Professor, Paul Brest, too closely. You see, I think Originalism or Strict Constructionism or Textualism, or whatever you want to call it, is total nonsense. But my views were actually formed years before I even thought about becoming a lawyer.

A Physics professor commented last time on my reference to the Heisenberg Principal of Uncertainty to support my position that we really cannot know anything, objectively, with absolute certainty because we always project our own values onto our analysis of anything, from deciding whether oysters are delicious or disgusting to whether the Fourth Amendment protects Apple from searches.

Ironically, I was headed for a career in Physics when I first realized how silly the idea was that we could ever really know absolute reality. Being mere mortals, I just didn’t see how we could. Fans from opposing teams can’t even watch a penalty call in the Superbowl without seeing diametrically opposed things. If the plain meaning of the rules is so clear how come that happens? Simple. Those fans are projecting; projecting their own bias all over their so-called objective analysis. I should know a thing or two about that – I’m a die-hard Seahawks fan. The refs always make bad calls against us, especially during our first trip to the Superbowl.

But, hey, I’m totally objective, right? Suuuure.

So, I took a detour from Physics and the pursuit of objective reality and focused instead on how we subjectively project our values and beliefs on our perceptions and thoughts. I became a Psych major. It wasn’t just that I like majors with the letters p, s and y in them. No, I wanted to understand how to work around our inherent bias filters to help us get a closer look at what was real. It’s not easy.

You see, the problem with all that science, whether we are talking Theoretical Physics or Psychology, is that it’s fallible. It’s not the science that’s the problem. It’s the humans who make it all up.

Human error is unavoidable. To err is human. We do it all the time. The ultimate conceit is to believe that we can KNOW what the correct analysis is, without bringing our own subjective beliefs into play. We can’t. The best we can do is to acknowledge those beliefs and set them aside as much as possible.

With this fascination with human error is it any wonder I wound up becoming a criminal defense attorney? Human error is our bread and butter, whether it comes in the form of people committing crimes or governments investigating those crimes illegally. It’s all about mistakes and the people who make them.

Of course, strict constructionists don’t believe in that. They believe they are infallible, that they know the true and correct way to read the Constitution and that their interpretation is based strictly on the clear obvious meaning of its words, essentially with no room for error. So, again, can the Government search those iPhones based on the Fourth’s 54 words? Or not? Why or why not?

It’s so easy to answer for some. Not for me. I think it requires a lot more than 54 words to figure it out, but that means I am not strictly construing; I’m actually thinking, perish the thought.

My last piece could best be described as a warm and fuzzy ditty about how sweet it was that Justices Scalia and Ginsburg managed to be best buddies despite their major philosophical differences when it came to legal theory. It created a small firestorm of outrage and political rants, on both sides of the argument, largely focused on Originalism.

To me, the fact that such an innocuous post prompted such vitriolic outrage is the proof in the pudding that strict constructionism is a farce, an illusory construct embraced by misguided analysts, who believe that their subjective agenda does not inform the way they interpret the law. In my not so humble opinion, this approach is naïve to the point of being cluelessly ignorant.

I mean, how can a puff piece lead directly to such off topic rants unless the ranters are projecting their own beliefs and biases all over my little article? What could possibly demonstrate the fallacy of strict interpretation better than someone reading a piece designed to make them say “Awwwwww” and instead leads them to shooting barbed attacks across the ether at total strangers? Which, of course, means that all the Originalists out there were completely missing the entire point of what I originally intended when I wrote it, that we should all be nicer to each other even if we disagree. So, Bingo.

I saw the fallacy of the quest for objective reality first in Physics, then in Psychology. If it was right there staring us in the face, why did people spend so many centuries believing the Earth was flat, or that the Universe rotated around us, or that blood letting was a good idea, or that our health was strictly controlled by the four humours in our body? Not to mention Freud’s notorious id, ego and superego. They were wrong. If people were strictly construing everything all over the place, how could that be? I gave up and went to law school, the homeroom of human fallacy.

When I got to law school I was amazed that the naïve belief in objectivity was in full flower. You see, Stanford Law is pretty much the crucible of modern strict constructionism. True, the term went all the way back to Jefferson and even Davy Crockett, who supposedly gave a speech, “Not Yours to Give”, in which he argued that the federal government had no power to give money to a naval war widow because, strictly speaking, Congress had no delineated power to give charity.

Jeepers. Wonder how that version of Originalism would be received today? My guess is not so well. Why? Because times have changed. No one would argue that today, even strict constructionists. (By the way, legal scholars, especially Scalia, go to great lengths to distinguish strict constructionism from textualism and originalism. To which I say, “Give me a break. They’re all the same.”)

At Stanford this stuff was the hot topic. That’s because Reagan elevated Rehnquist to Chief Justice and appointed O’Connor, Scalia and Kennedy to the Court. Since three of them were Stanford Lawyers, we became the home of the “strictees”. It was embarrassing. Fortunately, my Constitutional Law Professor, Paul Brest, dared to disagree with the idea, giving us permission to follow his lead. And most of us did.

We saw the human error of believing that what you had for breakfast did not affect your thought processes in the afternoon when you were up there, sitting on the bench, trying not to fall asleep. The idea is to recognize that the scrambled eggs are making you sleepy and thus know to pinch yourself to help you focus on the law. I know that sounds silly, but sometimes heartburn has as much to do with legal reasoning as original intent does. In the old days it was hangovers. It’s just real life. Justices use bathrooms too and everything. They’re humans, not gods.

So, I leave you with that question, not an answer:  Does the Fourth Amendment protect Apple from this search or not?

Come on all you Strict Constructionists out there. It’s plain. And clear. And has nothing to do with worries about protecting us from ISIS. I mean, ISIS did not exist when the Framers were alive, so how could it? Right?

Or not?

7 Comments

  1. Wesley Wieland
    Wesley Wieland February 24, 2016

    Is this not a business law question? Does Apple own the phone and the content, or does the purchaser(organization that paid for the hardware and the service). The real problem is that to break into one phone is to break into all of them. (or so Apple says, and it actaully adds up bssed on my small experience with OS and software security)…

    The first question to answer is who owns the phone and it’s contents.
    The second question is can the owner comply with the an order to provide the desired info to investigators? If Apple is the owner, then the answer is yes, if not, the answer is most likely no.
    The subsequent question is can the the compromise of a single phone be allowed to comprimise all phones?

    I will project my own values by saying that Apple does not own the phone or the content, and thus can’t be compelled to comply. Additionally, the hardware and content owner does not have the technical capability to comply, and therefor can not be compelled. And finally, if for some reason, either could provide a method for compling, they would still be protected by the 4th ammendment, as there is no way to break the individual phones security without diminishing the security of all other phone owners.

    So, I am certain I fail the test as I am not a lawyer, just a common retired engineer. But how would I have scored in the this question? (Yes, I realize I did not properly cite or reference, hard to do on a tablet even with todays tech)

    • Craig Platt
      Craig Platt February 27, 2016

      Great answer. Not to mention that you noticed the law school exam aspect, which is what I was hoping for. And, yes, imho you passed! Law is a bit like math when it comes to evaluating answers. So long as you show your work, that is more important than the final answer in most cases. With Law, you show your work by “spotting issues”. How those issues should be resolved, again imho, is where subjective values come into play and inform the final answer. Thus illustrating the fundamental problem with pretending those answers are in stone, carved out by the Framers over two centuries ago (actually, written with pens made out of giant feathers :~). You hit the nail on the head when you identified that problem with subjective projection as well, so yes, better than a passing grade. You move to the front of the class. 🙂

      • Wesley Wieland
        Wesley Wieland February 28, 2016

        Thank you for the vote of confidence! I appreciate it.
        The similarity to math you point out seems accurate to me and is something that has bothered me for a while. Codifying everything to the nth decimal place is not additive, just encumbering. I understand the need for a logical continuity in the technical application and implementation of law(it is similar to ISO9000 documentation). When, however, the technicalities supercede the intent of the law(subjective, I know), then the law becomes this rigid thing which entraps us instead of freeing us. There are getting to be more and more examples of this – where it seems we are more concerned about maintaining the technical integrity of the legal system than we are about protecting the freedom our legal system is intended to provide us. And that is, in my view, the problem with ‘orignialism’.

        Actually, I appreciate originalism a great deal. It keeps things easy as long as nothing changes. But life is dynamic and diverse. If a system of law becomes so codfied that it prevents change, it logically will fail. Should not the precedents be examined with an eye to both the historical context and contemporary context? If a question is one of the ‘Framers Intent’, then one would have to assume that the Framers had not intention of allowing things to change if one is to be rigidly tied to ‘the Framers words’.

        Anyway, I am going on about something I have no expertise in. It certainly interestes me in that I think that it is important that lay-persons like me ask these questions, and that professionals like you and others provide us with scenarios to question. I think that it is also important that we lay-folk not be intimidated by the expertise of the professionals(and many of us are). After all, when it all boils down and we get to the subjective, there really are no professionals or lay-folk: There are just humans trying to get along with each other…

        Thank you again for taking the time to respond. I clearly still have a lot to think about, both in general and within the context of the Apple/FBI case. I can understand the frustration of the agents who are charged with protecting us in a very day to day visceral way. I also understand (and personally feel) the reticence (sp?) around the idea of handing the keys to authorities who may take protecting us a little (or a lot) too far.

        • Craig Platt
          Craig Platt February 28, 2016

          Thanks very much for your excellent input. I’d say more but, as always, I’ve got to get back to work. Take care.

  2. Steve Renshaw
    Steve Renshaw February 24, 2016

    I will start this off by using another legal concept. ‘You cannot slander the dead’. Since the owner of the phone is in fact dead, no harm can come to him by this action. If he was alive I would not necessarily see it this way.

    • Craig Platt
      Craig Platt February 27, 2016

      This is the threshold issue in any Fourth Amendment case: Standing. However, here the phone actually belonged to his employer, so it’s a bit different. The standing issue would be analyzed differently in that case. Different jurisdictions have different rules on standing, which, since ‘standing’ is not one of the 54 words in the Fourth Amendment shows how far afield the discussion can stray from the original words. Thus, once again, showing the inherent fallacy of originalism.

  3. Seriously?
    Seriously? February 25, 2016

    Unreasonable search. Resonable suspicion. A court ordered search warrant from a Judge. The FBI has all of that going for them and it all conforms to the framework of the Fouth Amendment. The caveat here is What Apple DOESN’T have, which is the encryption codes. If Apple DID have the codes, then yes, they are obligated to comply with the court order, because there is a search warrant and more than enough reasonable suspicion But they don’t. And by design and intent. The real question here, is does the Government have the right to compel a private company to give them access to, not just the one phone, belonging to one despicable terrorist, but to hundreds of millions of other phones. Because once the “back door” is made, it cannot be unmade. I believe that is what concerns Apple and rightfully so. What do we think would be done with that new tool? Would the “backdoor” be discarded once the information is gathered? Or Is it possible that it could be cloned and reverse engineered. No, if this has anything at all to do with the fourth amendment, it is the possibility that this new tool could be used in other, extra legal ways, that could potentially violate someone else’s rights. Pandora regretted that she opened her box… Perhaps we should remember that.

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