The Fourth Amendment is often cited whenever a legal issue involving privacy arises. While I recognize that the “rights” listed in the Bill of Rights are actually temporary privileges that are revoked the second they become inconvenient to the government, I think that it’s worth taking a look at the language:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What’s noteworthy in regards to this post is the fact that nowhere does the Fourth Amendment state that measures have to be taken to make information easily accessible to the government once a warrant is issued. This omission is noteworthy because a lot of the political debates revolving around computer security are argued as if the Fourth Amendment contains or implies such language:
Dubbed “Clear,” Ozzie’s idea was first detailed Wednesday in an article published in Wired and described in general terms last month.
[…]
- Apple and other manufacturers would generate a cryptographic keypair and would install the public key on every device and keep the private key in the same type of ultra-secure storage vault it uses to safeguard code-signing keys.
- The public key on the phone would be used to encrypt the PIN users set to unlock their devices. This encrypted PIN would then be stored on the device.
- In cases where “exceptional access” is justified, law enforcement officials would first obtain a search warrant that would allow them to place a device they have physical access over into some sort of recovery mode. This mode would (a) display the encrypted PIN and (b) effectively brick the phone in a way that would permanently prevent it from being used further or from data on it being erased.
- Law enforcement officials would send the encrypted PIN to the manufacturer. Once the manufacturer is certain the warrant is valid, it would use the private key stored in its secure vault to decrypt the PIN and provide it to the law enforcement officials.
This proposal, like all key escrow proposals, is based on the idea that law enforcers have some inherent right to easily access your data after a warrant is issued. This idea also implies that your phone is actually the property of the various bodies of government that exist in the United States and they are therefore able to dictate in what ways you may use it.
If we are to operate under the assumption that law enforcers have a right to easily access your data once a warrant is issued, we must necessarily admit that the “rights” outlines in the Fourth Amendment doesn’t exist since the language offers no such right to law enforcers.