Apple and the American Revolution: Remembering Why We Have the Fourth Amendment

Abstract

This essay provides a concise history of events prior to the Revolutionary War that led to the adoption of the Fourth Amendment and relates that history to current controversies over the use of search warrants to obtain electronically stored information from cell phones and email accounts in the cloud, in particularly the FBI's attempt to get court orders forcing Apple to create and give to the government software eliminating the user privacy and security features of the iPhone and the pending Microsoft lawsuit against the Department of Justice challenging email search gag orders.

Compelling comparisons are drawn between the infamous Lord Halifax general warrants used in 1763 to seize all of a suspect's private papers and search them for evidence of seditious libel and warrants currently used by the federal government to seize the entire contents of a cell phone or of a cloud account and then conduct review of every item of digital data.

The essay concludes with legislative proposals to extend existing statutory safeguards for wiretapping and electronic surveillance to search warrants for electronically stored information, and provide notice and a right to a hearing before such warrants are executed.

Keywords: Fourth Amendment, search warrant, American Revolution, FBI, DOJ, Apple, encryption, cybersecurity, privacy

JEL Classification: K14, K19, K39