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Does Encryption Make Phones 'Warrantproof?' Fact-Checking The FBI


The court battle between Apple and the FBI is one for the ages, quite literally, if you listen to FBI Director James Comey. He says it would be a lasting problem for law enforcement if the courts do not force Apple to create the tools to help unlock a terrorist's iPhone.


JAMES COMEY: We're moving to a place where there are warrant-proof places in our life.

MCEVERS: That's the FBI director testifying before the House Judiciary Committee last week.


COMEY: That's a world we've never lived in before in the United States. That has profound consequences for public safety. And all I'm saying is we shouldn't drift there.

MCEVERS: We are looking at the big picture around the San Bernardino iPhone for this week's installment of All Tech Considered. Is a locked iPhone really a warrant-free zone? NPR's Aarti Shahani has been talking with some bright legal minds about that.

AARTI SHAHANI, BYLINE: Comey's claim is a bold one with two parts - one, that the iPhone is a warrant-proof place and, two, that is historically unprecedented.

ORIN KERR: Comey is 99.99 percent right.

SHAHANI: Orin Kerr, a law professor at George Washington University, is an expert on the Constitution, technology and police powers.

KERR: If the government has a warrant, they can break in. They can break into a house. They can break into a safe.

SHAHANI: Though, Kerry says there is this one tiny, little counterexample - the 1985 Supreme Court case of Winston versus Lee.

KERR: It was an armed robbery case. And a storeowner shot the robber. And the government thought Lee was the robber and wanted to prove it by extracting the bullet that was in Lee's body.

SHAHANI: They weren’t positive because the robber ran away. And this guy, Mr. Lee, who happened to have a bullet lodged in the left part of his chest, was found eight blocks from the crime scene. The government got a warrant and said, let us into Mr. Lee, but the Supreme Court said no.

KERR: When it comes to physical surgery, forcing somebody to have something extracted from inside of their body, that has to be judged on a case-by-case basis. You have to figure out, how important is it to get this evidence from inside the person? How dangerous is the surgery?

SHAHANI: So despite that warrant, law enforcement could not get in. Now, for this case to be useful to Apple, Kerry says, you'd have to argue that the iPhone isn't just a phone; it's part of your brain, your body.

KERR: And some people may think of it that way, but that's pretty different from saying it requires surgery to look at the phone.

SHAHANI: Apple's lawyer tells NPR that Comey's rhetoric about warrant-proof space is just that - rhetoric - because he's got a warrant. And Apple is saying, go ahead and break in; just don't expect us to help. According to Kerr, this line of reasoning is irrelevant. It doesn't matter if you have a warrant on paper. If Apple is working to create a digital lock so powerful, for all intents and purposes, no one can break in without the user's permission.

KERR: So I think the FBI is not just worried about 2016. They're worried about 2017, 2018 or five or 20 years or 30 years ahead.

SHAHANI: Stanford Law Professor David Sklansky says the FBI director is overstating his case. It is not a given that every new technology must be police-friendly or police-accessible. Consider phones. It took vigorous debate before the Supreme Court decided to authorize wiretapping at a large scale. And just because courts decided eavesdropping on phones serves the public interest, that doesn't dictate what should happen with the iPhone.

DAVID SKLANSKY: It has a lot more information in it and different kinds of information, and people use it in different ways.

SHAHANI: The iPhone isn't just a phone. It's a mish-mash of personal diary, physical tracker, photo album, health record repository. Sklanksy says if Congress chooses to weigh in, they might decide that the benefits to law enforcement do not outweigh the cost - a weaker digital lock in this new era of online data and criminal hackers. Aarti Shahani, NPR News. Transcript provided by NPR, Copyright NPR.

Aarti Shahani is a correspondent for NPR. Based in Silicon Valley, she covers the biggest companies on earth. She is also an author. Her first book, Here We Are: American Dreams, American Nightmares (out Oct. 1, 2019), is about the extreme ups and downs her family encountered as immigrants in the U.S. Before journalism, Shahani was a community organizer in her native New York City, helping prisoners and families facing deportation. Even if it looks like she keeps changing careers, she's always doing the same thing: telling stories that matter.