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Comment by otterley | Hacker News Reader

The Fourth Amendment requires a warrant, which in this case the Government has. The Amendment protects citizens against warrantless searches or open-ended warrants (i.e. fishing expeditions).

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Which is definitely applicable in this case. There is more data to be obtained from a person's smartphone than could ever have been obtained from their papers or personal effects; no one in the past could have anticipated recording data on that scale themselves.

I would argue that it's a difference in quantity which produces a difference in kind. When the "papers" in question contain e.g. a complete history of your location for the last four years, along with all of your communications to everyone you know, any search of those papers is by definition open-ended.

So the question should come down to the admissibility of evidence gathered from access to a device. Rather than "search this device" it becomes "search this device's photos" where if the authorities then dug through GPS data for instance it would be a warrant-less search.

The same principle already applies both in the UK and USA to physical searches of your person. If you're being searched for a weapon then patting down is a sufficient search, a strip search is not.

The trouble is that unlocking the device gives access to the whole device. And the willingness of the government to use parallel construction to conceal the origin of evidence has removed the ability of courts to restrict the admissibility of unlawfully obtained evidence. If we can't prevent them from using unlawfully obtained evidence then they have to be prohibited from unlawfully obtaining it under the pretext of looking for something else.

That's not the question in this case, though. The question is whether the Government can compel Apple to assist them in the execution of the warrant.

> no one in the past could have anticipated recording data on that scale themselves.

I don't think that's true. Anyone who kept a personal diary back in 1776 probably recorded more information about their activities and thoughts than an ordinary smartphone user today. And the detailed letters many people wrote each other back then probably reveal a lot more in the way of private thoughts than peoples' text messages today.

Undoubtedly the average person records more today than the average person in 1789. But that does not mean that more detailed record-keeping would have been beyond what people back then could have anticipated. Given the phenomenally detailed records we have from some people at that time, I think it was well within the contemplation of the framers that getting a warrant for someone's desk drawer could reveal extensive personal information.

> Anyone who kept a personal diary back in 1776 probably recorded more information about their activities and thoughts than an ordinary smartphone user today.

Not to volleyball this, but I don't think that's true. Any information in a personal diary is there because it was intentionally, explicitly entered there (even if with the expectation that it would remain private). There is a lot of information on most people's phones that they have not intentionally, explicitly put there.

But a diary will have mental impressions and context that is missing from smartphone GPS records. E.g. a smartphone might tell you that someone attended a radical anarchists' meeting, but a diary will likely reveal what was said in that meeting and the author's mental impressions.

Remember the question we are discussing: could people in 1789 have anticipated the kind of invasions of privacy searches of smartphones enable today? Given the kind of detailed records some people back then kept, not just bland metadata but detailed accountings of their thoughts, I think the answer is "yes."

We are still a long way from smartphones automatically capturing the kind of private thoughts people choose to write down (back then as now).

I'd like to think the founding fathers were some of the smartest and most forward-thinking people of their time and they most certainly assumed that eventually people would need these protections. This is tantamount to the 2nd amendment argument where people assert that the founding fathers didn't intend for it to apply to today's weapons and the counter to that usually is that they didn't know the internet would ever exist yet things written on the internet are still protected speech so both are moot points and the protections still, and should, exist and be honored.

So would this be similar to if some bit of evidence was in an obscure language only one person knew and spoke, and the government is trying to compel that person to do the translation?

Good analogy, though in this case I think the argument is that the police can't compel a professor of obscure language to help.

It's more like a professor of obscure language that helped the suspect write the document in question.

The Fourth Amendment protects people subject to the government (not "citizens", except insofar as those are a subset of "people subject to the government") from unreasonable searches. It sets standards for warrants to be issued, and this is generally read as implicitly creating a rule that, compliance with a warrant issued under that standard are a sufficient and, in all but certain exceptional cases, necessary condition for a search to be "reasonable", but the fundamental protection is against unreasonable searches, not warrantless searches.

My point is that a warrant exists. Nobody is contesting the validity of the warrant -- at least, not yet.

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