This is an interesting legal problem. Francis Rawls’ employers, the Philadelphia Police Department, had reason to believe he had been frequenting an online service that was known to traffic in child pornography. They seized his computer and hard drives only to discover that they were encrypted by the Apple OS. They demanded that Rawls un-encrypt them. He refused on the grounds of self-incrimination.
There is, of course, a real legal principle that a person cannot be forced to incriminate himself. The police– in kind of a weird twist– suggested that he type in the password without telling them what it is. Why? How is that different? Because, they say, then he is not “incriminating” himself. They will do the incrimination when they look at the hard drive. Telling them the password, they claimed, could be “construed” as the forbidden self-incrimination.
I’m not sure if many people understand how weird this problem is. President Obama himself thinks the police should simply be able to call Apple and demand that they facilitate access to the hard drives by providing them with an application or a key that will bypass the user’s encryption. His analogy is a search warrant for a house: if the police think you committed a crime, and can convince a Judge that they have good reason for that suspicion, they can get a warrant and enter your house and look through your underwear drawer. Why shouldn’t they be able to look through your hard drive?
First of all, let’s get this out of the way: your hard drive is not your underwear. Your hard drive may contain the contents of your mind, your thoughts, your feelings, your interests, your fears, your imagination, your dreams, and even your beliefs. In a sense, it could be argued, the government thinks that now that there is a way to “read your mind”, they must be allowed to do it.
Would it be hard, given any average person’s computer, to find something incriminating among the thousands and thousands of files, images, tags, visited websites, that would be there?
I’m going to go sideways on the issue for just a second: I don’t believe you can discount the fact that disclosures by Edward Snowden and others in the past few years have raised serious issues about whether or not the government is itself abiding by its own laws in terms of accessing private information. This is not a trivial issue. Obama says, trust us, we’re law enforcement, we have integrity. Snowden’s disclosures show that you don’t have the high road, and no, you cannot be trusted. If you were given the power to access anyone’s private information, you have demonstrated that you will lie and violate the constitution to do it.
Back to the main track: what if the government and the police started whining about the fact that they don’t have recordings of everyone’s private conversations in their homes that they could access– with a warrant, of course — to try to stop child molesters and drug dealers and terrorists? Why can’t they install listening devices in everyone’s home (they could already just use your phone, with the right access)? They promise they would only listen to the recordings when they have good reason to suspect a crime has been committed.
The courts have been very, very clear that the police cannot try to obtain such recordings without a warrant. They can’t just pick out a house and put a recording device in it to see if you are committing a crime. Why not, they would argue? If you are not committing a crime, what do you have to fear? And what if the police say, we will install the recording device but we will never examine the recordings unless we have reason to believe, in the future, that you have committed a crime.
That’s the big difference between a wiretap in the past and what the government is now doing. In the past, if the police obtained a warrant, they could install listening devices to record any conversations taking place from that moment forward. But if the police acquire the ability to search your computer without your authorization, they are, in essence, compelling your testimony. They are forcing you to incriminate yourself.
What the government now wants is the right to go into your past.
As an aside, suppose the government proposed to give itself the authority to do this, to plant listening devices in every home? Suppose a courageous Senator or Representative amended the bill to require that every government official and politician must also allow all of their private conversations to be recorded? Do you think it would pass?
Never. If the government ever considered such legislation, I can guarantee you they would give themselves, and the police, exceptions– for “national security” reasons, no doubt.
[whohit]The Retro Warrant[/whohit]