Recently, we have been treated to, or saddled with, extensive debate about whether the FBI or Apple should win the fight over whether the government may compel Apple to create a means of cracking the encryption on its iMessage technology.  Proponents of the government side argue national security and other law enforcement concerns.  The Apple proponents (some of whom seem to be part of an Apple cult) complain about privacy breaches and individual liberty.  I come at this issue as a true hybrid.   When I was a prosecutor, I was involved in numerous investigations which included electronic surveillance, and countless investigations involving searches of persons, homes and vehicles.  At the same time, I also am a staunch believer in individual rights and an even stauncher believer that, left to its own devices, government would trample individual liberties.  This issue crops up in the wake of the San Bernardino terrorist shootings.  San Bernardino Islamic terrorist Farook had an iPhone.  Apple iPhones include a feature called iMessage, which permits messages to be sent from one Apple device to another.  These messages are encrypted to the degree that only the sender and the receiver can decrypt them.  Farook’s phone may contain such messages related to his terrorist activities.  Not surprisingly, the FBI wants to know what’s in the phone, but after the input of a certain number of combinations of potential passwords, the phone automatically wipes out all the information.  Apple says it doesn’t have a means of cracking the phone.  A court has order Apple to create a way to crack it.  Apple doesn’t want to do it.  The Apple-FBI fight has generated considerable heat, but considerably less light.  I submit that the solution requires us to go back to fundamentals, that is, to the supreme law of the land, the Constitution.  One of the main purposes of the Bill of Rights was the protection of privacy.  The Fourth Amendment requires search warrants, based on probable cause, before the government may invade your privacy.  The touchstone is reasonableness.  Fourth Amendment protections were applied to electronic communications (telephone calls) almost 50 years ago.  Since even the privacy of one’s home may be breached with a warrant, it is logical to conclude that a telephone enjoys no greater protection.  That principle is clear.  The way to implement it is not.  In 1994, Congress enacted the Communications Assistance for Law Enforcement Act (CALEA), the purpose of which was to require “telecommunications carriers” to upgrade their systems to make it possible for them to comply with court orders for electronic surveillance.  CALEA gave law enforcement access to digital communications technologies.  Apple no doubt would argue that it is not a carrier, but only a manufacturer of equipment.  Well, yes and no.  Apple makes the phones, sure.  However, a telecommunications carrier is an entity which is engaged in the transmission of electronic communications to the public for a fee.  With iMessage, Apple arguably does those things.  In any event, this type of electronic messaging was not included in CALEA in 1994 because there was no sign of criminal use of electronic messaging.  Criminals apparently have caught up with this technology.  Maybe the law needs to be changed.  As for decryption, CALEA does not require carriers to decrypt or to ensure that the government may decrypt, “unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.”  This would seem to come down on Apple’s side, because they say they don’t possess the information necessary to decrypt.  The precise issue presented by the FBI-Apple fight doesn’t seem to fit neatly into existing law.  At the end of the day, you’d think a settlement would be possible, but that’s not an easy task either.  Apple doesn’t want to create a technology that would open the floodgates to an untold number of court orders for iPhone information.  For its part, even if Apple agreed to do so, the FBI understandably  doesn’t want to send the phone to Apple to get it opened, and rely on Apple to give it the information.  Even when a phone is tapped, the phone company simply makes possible the receipt of the contents of communications by law enforcement.  The phone company doesn’t obtain the content and send it to law enforcement.  For obvious reasons, the FBI doesn’t want Apple to have access to information which may affect national security.  There is no easy solution to this mess.  Here’s a suggestion.  Since Apple  manufactures its iPhones in China, the Chinese no doubt have already engineered the means to defeat the encryption.  Why not have the FBI ask the Chinese what’s on Farook’s phone.  They probably know already.

One post-debate observation before I close.  Lord save us from billionaires.