Unless you have been hiding in a cave somewhere hibernating and just awoke, I assume you have heard about the District Court Magistrate, who in an ex parte proceeding ordered Apple to create a method to unlock its carefully created blocking mechanism protecting an iPhone’s encryption.

The iPhone is Apple’s big money maker.  One of its biggest selling points is that its latest encrypted operating system is unbreakable.

Apple has refused to comply with the federal court order which has set off a firestorm of controversy which has engulfed the country.

While emotions are running extra hot in this case, the legal principle involved is fundamental.

Americans are entitled to have the courts protect then from the breach of their Constitutional rights of privacy and freedom from illegal government intrusion.  Courts sometimes make mistakes which is why there are appeal courts and the Supreme Court. Judges have their cognitive biases as everyone else in high profile cases, and regularly they get caught up in making political decisions rather than legal ones.

The clash between Constitutional principles and factual circumstances arise in cases involving bad people. These are situations where passions and sensation assault rationality and logic.

The Miranda case recognized that people have a 6th Amendment right to an attorney.

Those in law enforcement must tell them of that Constitutional right before questioning them or else the evidence gathered is not admissible in court.  Due to this exclusionary rule which enforces Miranda, there are occasional cases where some bad guys and girls escape justice. 

The Apple case involves the actions of despicable people doing evil.

The government’s position, in this case, is that the iPhone used by one of this Islamic terrorist is owned by the San Bernardino Department of Public Health which consented to the iPhone being searched. The government said it can’t search the iPhone since they cannot break the encryption technology built into the phone’s operating system. The Islamic terrorists, Syed Farook and Tafsheen Malik, murdered 14 people and wounded 22 others. 

The government claims that Apple has the technical ability to create a way to override the iPhone’s built-in encryption technology protections.

What does the government expect to get out of that phone?

They don’t know yet.

They are “in the hopes of gaining crucial information about the December 2, 2015, massacre…”

That crucial information, the government tells us, may be who the killers communicated with to plan and carry out the IRC shooting, where they may have traveled to and before, and other pertinent information that would provide more information about their and others’ involvement in the deadly shooting.

I agree that it would be good for the government to have that information.

But it is very clear that the government needs no information from the iPhone to prove the murders committed by Farook and Malik.  The government does not even make that claim. It just speculates that it will learn of additional information.

That is a big problem for the 4th Amendment.

For law enforcement to permit a Constitutionally search warrant of persons, their houses, papers, and effects, they have to prove up to a court both probable cause and particularly describe the place to be searched and the persons or things to be seized. The Supreme Court had previously ruled years ago that “a person’s communications are akin to personal papers.”

The Supreme Court has recognized certain exceptions to the warrant requirements. None of those appear applicable to this case, and the government has claimed no exception.

While the government would like to claim that the public’s safety is at stake, there does not appear to be any exigent circumstances or immediate threat. Again, the government does not make that claim.

The government argument seems that it is necessary to override fundamental Constitutional protections of personal liberty for the yet unspecified greater good that will come from it. 

The Apple court order is remarkably different from court orders issued in the past to technology companies. This order, although carefully couched in the language of governmental doublespeak, requires Apple to create new software and not just apply technology readily at hand.

It has been reported that the Director of Civil Liberties at Stanford Law School’s Center for Internet and Society, Jennifer Granick, said, “This is a new frontier. I know of no other statutory provision that would arguably create an obligation for device manufacturers to help out government.”

There is even more to this story.

It now comes out that just hours after Farook’s iPhone was recovered by law enforcement, the password to his iCloud account was reset. In a statement issued early Sunday morning, the FBI confirmed it was working with San Bernardino County officials at that time. It has not been disclosed just who hit the wrong button at the wrong time.

This past Friday, Apple executives said that if the iCloud password had not been changed, then there would be no need for them to create the backdoor to the iPhone. 

Apple went to great lengths and expense to create an operating system where iPhone users could feel confident that all communications through their devices would be protected from intrusion by anybody including the prying eyes of the government.

Think about what this Apple case should mean to you the next time you upgrade your mobile phone operating system or buy a new one.

Would you choose the mobile phone that protects all your personal and confidential information, or would you choose the mobile phone that protects against any intrusion of your privacy excepting the government?

Denis Kleinfeld is known as a strategic tax and wealth protection lawyer, widely published author and creative teacher. To read more of his articles, CLICK HERE NOW.