In this country we all know that we have rights. In this case of Apple vs. FBI the rights that are apparent at the forefront are the 4th and 6th Amendments.
Amendment 4; simply states and protects people from unlawful search and seizures of property by the government a no warrants shall, but upon provable causes.
Amendment 6; simply states that an accused has the right to a speedy trail, so that the accused is protected from secret deals, an impartial trail (the jury or attorneys or judges cannot biased against the accused), the right to a defense counsel and the right to cross-examine.
In the current case facing Apple v FBI, the terrorists, declared an Act of Terrorism, who had possession of the phone are deceased. However, it is very possible the next time Apple is called upon by the FBI or another law enforcement agency to open up a phone to enable access, there is very strong chance that the person(s) in possession of a phone during an illegal and possibly heinous act will be alive and could be an American citizen and will make a demand to have the Assistance of Counsel for his or her defense.
One of the biggest arguments among many other arguments with this issues, is that in the event Apple loses the current case to the FBI, which would then be setting a precedent that they can be compelled to unlock phones for the FBI and other government agencies, each and every defendant in such cases will have the assistance of counsel for their defense.
The next fire storm, that will possibly be created, would come from a legal standpoint as motions will be filed from defense lawyers as they seek to protect their clients who have had a phone “cracked.” Once the phone is “cracked” by Apple, or any device, or Operating System developer, whatever is found by the FBI or whatever government agency is involved, is going to be labeled “planted” or false evidence. The defendants’ lawyer is then going to strongly argue and contend that whatever was found did not originate from their client and that Apple conspired with the government agency.
Subsequently and even possibly producing evidence to show Apple modifying the software to not only unlock the phone, but to also write to the device everything the government agency needs to gain a conviction.
This would include, but will not be limited to pictures, texts, logs files, and videos.
Yes, the FBI and Apple would then argue and do everything in their power to try to stop this allegation of a wrong and conspiracy, but what if they cannot? This is exactly why Apple must win the current case against the FBI. Because there is a near to nothing chance, that the code that will be created by Apple to break into their phones can stay private under current laws.
I would contend that as it pertains to the 4th Amendment, we let the police or government agents into our home, business, vehicles and computers and allow some of our digital data to be acquired using warrants and subpoenas. The difference here is in the ability for a defense attorney, to fight for a defendant(s) and be able to determine whether or not physical or digital evidence is false evidence. The court has established that with physical evidence, there are always risks and possibility as reasonable doubt of planted evidence, but there are processes in place to contest such evidence. So the big risk here for Apple is with digital evidence as direct data, the best, if not only way to prove that the code was not written to plant digital evidence, by Apple, is by showing the code. I would argue that is why I think this case of Apple vs. the FBI is nothing like any of the current search and seizure case addressing digital or media information.
Rufus Dawson @rufusshaft
Emerging Media Graduate Student