Apple and the Third Amendment


My reasoning on why Apple should not comply with the court order to hack its own product.

We know that you can be subpoenaed to appear in court and give testimony in a criminal case. Can the government force you to engage in activities that you would ordinarily not do? Can they force you to spy on your neighbor? We know that they can ask you if you happen to see or hear something, but can they force you to look or listen? The obvious answer is “No” because we often hear about witnesses turning “state’s evidence” or agreeing to be an informant in exchange for some consideration. If the government could force this upon citizens then the “deals” would be unnecessary.

The Third Amendment enumerates a person’s right not to be commandeered by the government to provide accommodation to agents of the government. Clearly the government cannot come into ANY house and set up shop without the consent of the owner. Remember that a “house” is simply a place where people meet for a particular activity e.g. ‘house of worship’, ‘house and senate’ etc. So, how does the government justify coming into Apple’s house and commandeering those inside to serve the needs of the government? The answer is that it cannot.

The phone in question may or may not have contact information about who the San Bernardino jihadists called. If there is information, doesn’t the NSA already have the metadata (what number called what number when and for how long) for all cellphone calls? We were told the NSA needed this ability precisely for the same reason Apple is now being asked to breach this particular phone.

The simple, if not obvious answer is that the government would like to establish a precedent to force a third party to engage in law enforcement activity. While the investigative value of the contents of one iPhone may be unknown, the value of being able to breach the Third Amendment is enormous, and terrifying.

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