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Modern technology presents legal, Constitutional conundrum

Our cellphones retain remarkably large amounts of information about us. They track whom we call; who calls us; our locations; Web browsing history; online purchases; and, if we use phones for them, our financial transactions and medical histories. Almost all of us consider that information private.

Companies like Apple and Google develop sophisticated tools for encrypting data stored on our smartphones. Apple says that it would take 5 1/2 years for a hacker using a fast computer to gain access to an iPhone's data using a "brute force" attack (trying all possible passwords), and to make that long period even longer, iPhones lock up for an hour after nine incorrect passwords have been entered. Apple also claims to be as powerless as a hacker trying to circumvent the hardware and software security built into their newer phones.

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Sayed Farook, one of the killers in the San Bernardino shootout last December, had an iPhone, and FBI investigators want the information he had stored on it. One week ago, the FBI obtained a court order requiring Apple to help them break into his phone. The next day, Apple said that the FBI wanted them to build an entirely new version of its operating system. Apple CEO Tim Cook argued that complying with the FBI's request would "undermine the very freedoms and liberty our government means to protect." Most of Silicon Valley came out in support of Apple's position; the industry group Reform Government Surveillance was even stronger in its objections to the court order.

The FBI is not necessarily asking for an all-purpose back door, as Cook had stated. In the past, federal, state, and local law enforcement agencies have asked businesses, phone companies and banks to cooperate with their investigations. Those requests remained relatively uncontroversial as long as they stayed specific, limited and subject to judicial scrutiny. And in this case, most of Farook's privacy rights passed away when he did. In this case, however, there is more at stake than a single terrorist's single cellphone. If Apple's claim that breaking into this phone would make everyone's data less secure, the FBI's request exposes us all to having our private data hacked. This puts two fundamental rights in conflict with each other, and this is an election year.

In the heated world of election-year politics, this clash between technology and intelligence, privacy and security, drew comments from most of the people seeking the presidency. Trump and Cruz found it convenient to set aside their mantras of keeping big government off the backs of the private sector and sided with President Obama and the FBI. Kasich thinks it is "not government overreach." Rubio took a more nuanced position, recognizing that citizens might not like government having the ability to break into sensitive information, but asking Apple to comply voluntarily. Sanders and Clinton both see the complexity and the risk that oppressive governments like those in Russia, China and Iran might put the same demands on technology companies, intending to suppress political dissent. The White House issued an executive order to create the Commission on Enhancing Cybersecurity; to date, no one on the right has called this executive overreach.

This important issue will be a significant factor in resolving conflicting legal principles. We believe we have a right to privacy. The Fourth Amendment implies this right, declaring "the right of the people to be secure … against unreasonable searches … shall not be violated." The 14th Amendment has also been read as implying a right to privacy. Robert Bork's testimony that he did not believe this right existed resulted in a bipartisan Senate majority rejecting his nomination to the Supreme Court. The federal government also has a responsibility to ensure our safety from foreign attack. While foreign espionage is accepted, spying on American citizens inside the U.S. is still a very highly charged issue, even for those who, like Farook, have become "radicalized."

It is certain that a case pitting the right of government to intrude on the right to privacy will reach the Supreme Court. That decision will have impact on every American's right to privacy and also on the criminal justice system. The Founding Fathers could not have anticipated this conflict. Future Supreme Court justices must understand modern technology as well as constitutional law, because our society has evolved far past the confining straightjacket of original intent.

Mitch Edelman writes from Finksburg. Email him at mjemath@gmail.com.

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