Security vs. Privacy in the Digital Age

Apple and the FBI are currently battling over the fate of an encrypted iPhone and the future of privacy rights in the United States. The controversy hinges on several complicated legal questions, and the case continues to evolve. In this eLesson, students will learn about the battle between Apple and the FBI and analyze the connection between the Fourth Amendment and privacy rights in the digital age. Resources

• “Apple, the FBI, and Phone Encryption: What’s at Stake,” NPR
• “Inside the FBI’s Encryption Battle with Apple,” The Guardian
• “A Message to Our Customers,” Apple
• The Bill of Rights
• eLesson: Mapp v. Ohio (1961), The Bill of Rights Institute

  Activity

1. As homework the night before, or in class, have students read the NPR and Guardian articles for background. The salient points of the controversy are the following:
   1. In December 2015, Syed Farook and Tashfeen Malik attacked a hospital in San Bernardino, California, killing 14 people. Farook and Malik were later killed by police. The perpetrators were allegedly inspired by Islamic terrorist groups like ISIS.
   2. Police recovered an iPhone owned by Farook. The iPhone is encrypted and requires a four-digit password to gain entry. The police do not know the password, and after ten attempts, the phone will deny access to all users. Apple stated it could not decrypt the phone because its own encryption cannot be disabled by Apple’s engineers.
   3. To overcome this challenge, in February the FBI (through a court order) demanded that Apple create and install a new operating system in the phone. This would allow the police to attempt to unlock the phone.
   4. On February 16^th, Apple issued a public statement, “A Message to Our Customers,” explaining their opposition to the court order. In it, Apple argues that creating a new operating system to bypass security would allow the government to access any Apple users’ private data and information, especially since the government has demanded use of Apple’s private electronic signature, which functions as a master key that would allow anyone to access any iPhone. The government’s demand, Apple holds, does not comply with standards of criminal due process or the industry’s standards of customer privacy.
2. Have students read the Fourth Amendment to the Bill of Rights. Having read the Fourth Amendment, what are their reactions to the Apple-FBI controversy?
   1. What does the Fourth Amendment say?
   2. According to the Bill of Rights, when may the government lawfully access a citizen’s home, papers, and effects?
   3. Though the Fourth Amendment was penned in the eighteenth century, should we interpret it to also safeguard citizens’ digital privacy?
   4. Do you believe that the FBI has met the conditions set forth in the Fourth Amendment? Why or why not?
   5. Should there be a balance between liberty and security? Are there times in which the Constitution and individual rights should be overlooked in order to maintain safety?
   6. Should Apple comply with the order and create a new operating system and hand over their master key (private electronic signature)? What are the consequences if they do so? What might happen to Apple if they do not comply?
   7. Can you think of other times in American history in which the government has sought to balance constitutional rights and individual liberties in the name of preserving safety? Can you think of times in which courts have tended to favor privacy and individual rights against the government’s security concerns? How many of these examples have happened since September 11^th, 2001?
   8. In the Supreme Court case Mapp Ohio (1961), what did the court rule about rights to privacy and criminal procedure? How did this landmark case affect the ongoing Apple controversy?