The Fourth Amendment Deserves No Less Respect And Protection From Government Encroachment On A Sacred Right And Liberty Than Does The Second Amendment
The U.S. Constitution Constrains, And Was Meant To Constrain, Power Grabs By The Federal Government
A sovereign nation cannot long prevail among other sovereign nations without a central government. This is axiomatic. The founders of our Republic certainly knew this. But the founders of our Republic also knew that a nation’s central government is invariably at odds with individual liberty. A natural tension exists between government on the one hand and the rights and liberties of the citizenry, on the other. The Constitution the founders drafted for the American people is indicative of and serves, at once, as recognition of the conundrum our founders faced: that a strong central government is incompatible with individual liberty. A strong central government would eventually destroy individual liberty by amassing power unto itself at the expense of individual liberty unless a nation’s constitution places express curbs on such accumulation of power and unless the citizenry of a nation remains ever vigilant that those curbs are stringently adhered to.
The founders of our Nation dealt with the conundrum by creating a Constitution that embraces three fail safe devices. The founders hoped and trusted that these three fail safe devices would operate as an effective counterforce against the destructive impulses of government to acquire ever more power for itself and, in so doing, reduce, or end altogether, the exercise of individual rights and liberties. The three fail safe devices are: one, a three branch system of government; two, clear delineation of and demarcation of the powers each branch is permitted, lawfully, to hold and wield; and three, a Bill of Rights.
The three branch system of government precludes outright concentration of legislative, executive, and judicial functions in any one person or group of people. Each branch serves to check the power of the other two branches. This is what is meant by the phrase “checks and balances.” The “Separation of Powers” doctrine is also a feature of our three branch system of Government. The “Separation of Powers” means that each branch of our central – federal – Government has its own distinct function with no overlap or, at worst, with very minimal overlap.
The delineation of powers each branch wields prohibits both the amassing of additional powers by that branch of Government and the encroachment of one branch of Government on the purview of the other. Each branch of Government has, then, through the exercise of a specific function, a limited set of powers. If the Constitution does not prescribe a specific power for that branch of Government, such power cannot be lawfully exercised by that branch.
Lastly, the Bill of Rights secures for the people not only specific enumerated rights and liberties but reserves to the people unenumerated rights as well. The Ninth Amendment to the U.S. Constitution provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And, the Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The powers of our central – federal – Government are, then, limited, since the Constitution sets forth the powers each branch of Government may wield, consistent with the primary function of each branch. The powers residing in the States and in the people, on the other hand, are essentially open-ended. Moreover, the rights and liberties of the people are unbounded as they include both specific, especial enumerated rights and liberties and unenumerated rights and liberties. Importantly, the rights and liberties of the people, as codified in the Bill of Rights do not stem from the federal Government. They are neither a privilege bestowed by Government onto the people; nor are they a license issued by Government to the people. The rights and liberties are considered by the founders of our Republic to be preexistent in the people. The rights and liberties of the American people are neither created by government nor fashioned by the founders. The Bill of Rights simply codifies natural rights and liberties that are part of humanity that our federal Government – unlike the central governments of most other nations – are required, under our Constitution to respect.
Our Bill of Rights is, in essence, a codification of and assertion of the fundamental rights and liberties preexistent in the people. That fact is clear from the context of the U.S. Constitution. Since the federal Government is not the source of those rights and liberties, the federal Government cannot lawfully circumvent those rights and liberties. If the Government were to do so, the Nation, as a free Republic, as our founders intended, would cease to exist. If anything at all remained of our Nation, it would be but ornamental coverings, trappings. The Nation – our Nation – would be merely a dried husk, an empty shell.
OUR FOREFATHERS’ FEAR THAT THE FEDERAL GOVERNMENT MIGHT ONE DAY ENCROACH UPON THE RIGHTS AND LIBERTIES OF THE AMERICAN PEOPLE IS WELL-FOUNDED
The American people are aware, today, as the founders of our Republic had long ago feared that the Nation’s federal Government’s true and natural impulse – and that of many State Governments, as well, and often at the behest of the federal Government – is to encroach on the rights and liberties of the people. We see this as the federal Government slowly but insistently encroaches on and infringes the right of the people to keep and bear arms. We are seeing State and local governments also encroaching on and infringing the right of the people to keep and bear arms. The infringement of the fundamental right of the people to keep and bear arms, is, at once, noticed by the people. For, the American people either have access to firearms or they do not. They either exercise complete control over their firearms or they do not. The right to keep and bear arms, as codified in the Second Amendment, as with all rights and liberties, is intangible, but the expression of the right – possession and ownership of the firearm – is not. A firearm is a tangible, physical object. The loss of one’s firearms to government is immediately and emphatically felt by the gun owner.
The loss of other rights, however, such as the loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be immediately and emphatically felt because both the right and, in many instances, the expression of that right are both intangible. Yes, the seizure of one’s papers, or smart phone, or personal computer amounts to the capture of physical items. But, the content is what the government is really after and content is intangible. If government can “lift” that content without even obtaining the physical hardware, unlawful invasion of the privacy right in that content is lost. Loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be recognized but it does exist and it is no less critical to the safeguarding of a free Republic than is the Second Amendment “right of the people to keep and bear arms.”
All of our rights and liberties, as codified in our Bill of Rights, are critical to our survival as a free Republic!
GOVERNMENT ATTACK ON THE FOURTH AMENDMENT
The Fourth Amendment right of the people to be free from unreasonable searches and seizures is under attack by the federal Government – most noticeably and ominously since enactment of the Patriot Act. Recently, the FBI demanded that Apple Computer, Inc., — maker of the iPhone — unlock the encrypted data held in the iPhone of one, Syed Rizwam Farook.
You may recall that Farook, an American citizen and Islamic jihadist, together with his wife, a foreign born, non-American Islamic jihadist, went on a murderous rampage, murdering 14 American citizens and injuring another 22 in San Bernardino, California. This occurred late last year. The Government has finally acknowledged that this incident amounts to an Islamic terrorist attack on U.S. soil.
The FBI has obtained Farook’s iPhone but, the content is encrypted. The FBI has said that, despite several attempts, it has been unable to unlock the phone to obtain access to the content. The FBI has therefore enlisted the aid of Apple to assist the FBI in its efforts but complains that Apple has been uncooperative. In a lawsuit filed against Apple the Government contends, as reported in mainstream newspapers, that Apple refuses to assist the FBI in unlocking the content of the iPhone. The implication is that, through its failure to comply with the FBI’s order, Apple Computer is deliberately preventing the federal Government from performing a basic function on behalf of the American people, as expressed in the Preamble to the United States Constitution: “We the People of the United States, in Order to . . . provide for the common defence . . . do ordain and establish this Constitution for the United States of America.”
Is this simply an instance of a major computer company inappropriately and inexplicably refusing to assist the federal Government in the Government’s efforts to provide for the common defence of the Nation as the mainstream media, on behalf of the FBI, asserts, or is there more to this?
The federal Government, through its docile and compliant servant, the mainstream media, has certainly sought to create the impression that Apple Computer’s actions are unlawful and even unpatriotic because Apple is thwarting the Government’s legitimate attempt to fight terrorism on behalf of the American people. But Apple Computer takes strong exception to the charge. In an open letter posted on the internet, Tim Cook, Chief Executive Officer of Apple, sought to exemplify and clarify the issues, saying in principal part:
“For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.
We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for help in the days following the attack, and we have worked hard to support the government’s efforts to solve this horrible crime. We have no sympathy for terrorists.
When the FBI has requested data that’s in our possession, we have provided it. Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal.
We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.
Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.
The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.
Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the significance of what the government is demanding in this case.
In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.
The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.
The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.
We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.
Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.
We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.
While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”
Tim Cook, on behalf of the Company, claims that the Company has cooperated with the FBI in the past and desires to continue to do so. But, according to Tim Cook, the FBI is demanding of Apple something much more ambitious than the FBI would wish for the American public to know – and something clearly dangerous to preservation of individual rights and liberty. According to Tim Cook, the FBI is ordering Apple not merely to assist it in unlocking the contents of one iPhone – that of the dead Islamic terrorist – but to develop a new operating system that, once designed and installed in all iPhones would allow the FBI to gain access to encrypted data from every iPhone the Company produces. If Tim Cook’s account of the matter is true, then the Government is demanding that Apple create – in common parlance – a backdoor key. This key would enable the federal Government to peruse, at will, the content of every iPhone that Apple manufactures. Encryption, then, can be easily defeated. If encryption can be easily defeated, then the very import of encryption ceases to exist and no iPhone is secure.
Millions of people, both in this Country and worldwide, use iPhones for work and business. Apple’s customers rely on Apple to provide them with security that is impenetrable to anyone other than the owner of the phone. Apparently, Apple has been very successful on that score. But, if the FBI is requiring Apple Computer to compromise the security of every iPhone it makes – although superficially claiming interest in obtaining data from only one iPhone – then the FBI’s ambitions are far-reaching and truly ominous. The FBI is treading uncomfortably on the Fourth Amendment.
To say the FBI can be trusted to use a backdoor key sparingly, wisely and consistent with our system of laws and with the U.S. Constitution, strains credulity and is naïve in the extreme, especially in light of the FBI’s past mistakes. Moreover, as Apple has pointed out, and as computer engineers from other firms concur, the creation of an iOS that bypasses security invites hacking by criminal gangs and foreign governments.
It is difficult enough today for the average person and businessperson to protect his or her computer devices from the myriad viruses, worms, spybots, ransomware, and other assorted malware that daily infect computers. This has become a disturbing fact of life. Customers who spend hard-earned money on a particular smart phone, tablet, PC, and on other computer devices depend on the reputation and integrity of the manufacturer to provide the customer with a reliable device and a secure device. That the FBI would require – as Apple Computer contends – a computer device maker to compromise the integrity of all of its iPhones, not only encroaches on the Americans’ Fourth Amendment privacy interest but is also harmful to Apple’s business.
The FBI has, apparently, nothing to say, about protection of the public’s Fourth Amendment privacy right, but has much to say about the idea that Apple Computer’s real interest in this matter extends merely to business concerns and maintaining its Market share. The mainstream media, on behalf of the Government, has pressed the FBI’s accusation, in lengthy news reports and commentary, pointedly attacking Apple, arguing that Apple’s reluctance to give the FBI what it wants – a backdoor key – is predicated on shallow business concerns. Even so, protection of free market capitalism is not to be construed as an improper, if unstated, motive of Apple; for our economic system, predicated on free market capitalism, is a bulwark of our free Republic.
Moreover, even if – as the FBI asserts, and, as the mainstream media echoes on its behalf, and, as the public may reasonably infer and concede – Apple Computer is more interested in preserving its market share, that it fails to assert, than in protecting, as it overtly states, the iPhone user’s privacy and security – consistent with “the right of the people to be free from unreasonable searches and seizures,” – the fact that the Fourth Amendment is implicated at all is enough to warrant the American public’s grave concern in what the FBI demands of Apple. Thus, Apple’s underlying business motive in the case at bar is at most a tangential issue here, designed to divert the public’s attention away from the federal Government’s penultimate goal of creating “the surveillance society” as a conjunct of America’s “Police State.”
If, in fact, as Tim Cook says, the FBI is demanding a backdoor key to unlock encrypted content on every apple iPhone, then the federal Government is in the process of undertaking a frontal assault on Americans’ Fourth Amendment “right of the people to be free from unreasonable searches and seizures,” because the sanctity of and security of sensitive personal and business data would be placed in jeopardy if Apple Computer is ultimately compelled to create a backdoor key for the FBI. Apple’s iPhones would be open to continuous unlawful federal government surveillance and to breaches by foreign governments and criminal organizations as well. Of that, there can be no doubt. One’s ability to confidently and securely protect his or her private communications and sensitive data from prying government eyes and from the nefarious actions of criminal organizations would inevitably be severely weakened.
Of course, the federal Government has been attempting for some time now to compel all computer companies to provide the government with backdoor keys to enable Government to unlock, as it wishes, encrypted content held in every American’s computer devices.
So, we must ask: is the federal Government, disingenuously, insidiously, even arrogantly, using the Farook episode to garner public support for further unlawful Government intrusion into the private lives of Americans, under the guise of providing for the common defence of the Nation, but contrary to the precept of the Fourth Amendment? If so, this is not something new. The public has seen this before. For the same technique has been used by antigun groups as well when seeking to garner public support for legislation to weaken the Second Amendment right of the people to keep and bear arms. Then, as now, the mainstream media willingly trumpets the call of those forces that seek to upend the Bill of Rights. The antigun groups jump on one horrific incident of gun violence, perpetrated by one or a few lunatics, or criminals, or Islamic jihadists and, through that one, particular incident, coax the public to support measures that further weaken and eventually curtail the Second Amendment right of the people to keep and bear arms. Of course curtailment of a fundamental right and basic liberty is presented to the public, not as a loss but as a benefit, namely that, for the good of society – the collective, the masses – an American must surrender his or her firearms. If you do not buy into that – and know sane, rational American should – you should not buy into the argument proffered by the FBI that, for the good of society, you must allow Government to pry into your sensitive private data – into your personal and business life – and trust that the Government will use good judgment and refrain from doing so except when necessary “to provide for the common defence” of the Nation.
NOTHING LESS THAN THE CONTINUED EXISTENCE OF AMERICANS’ FUNDAMENTAL RIGHTS AND LIBERTIES ARE AT STAKE
Americans should never for one moment doubt that Government will, if the public is not continually astute and vigilant, undermine the rights and liberties of the American people. The federal Government is continually pressing the public to relinquish its rights and liberties for such security the federal Government says it can and will provide Americans in the alternative. Americans have seen before where this has gone and they know where this is headed. Nothing good can come of it.
The federal Government wishes to know what Americans are thinking. It wishes to control Americans’ thoughts and will do so by gaining entry to their secrets in derogation of the Fourth Amendment, just as it seeks to control Americans’ speech, in derogation of the First Amendment, and as it intends to control Americans’ access to firearms, in derogation of the Second Amendment. All of this is done under the guise of providing for the common defence of the Nation. But, the Nation suffers all the same as Government power increases commensurately with a decrease in the rights and liberties of the American people. What is occurring today in America is demonstrative of the founders’ greatest fear: that Government would turn on the people. As the doctrine of the separation of powers collapses, as the parameters of Government exercise of power extends, and as the rights and liberties of the American people continues to erode, the continued existence of our Nation as a free Republic begins to crumble.
Congressional Republicans and Democrats who play along with the carefully orchestrated charade and pretense of providing for the common defence of the Nation are not doing Americans a service. They should be protecting Americans rights and liberties. They are not. Instead, they are actively, insidiously, at work destroying those very rights and liberties, in defiance of and contemptuous of the oath of Office they have taken. They are a disgrace to this Nation and to its People.
The web blog, Salon, had an interesting point to make about Governmental lust for power, desire for control over the citizenry, and its attack on the Fourth Amendment, when it stated the other day:
“Security officials keep the public focus on the limits of surveillance rather than on its excesses; at the very same time, the frequent exposure of new surveillance capacities perversely functions to normalize those excesses. If widespread surveillance is ordinary, it cannot be shocking. Instead, the anomaly becomes whatever surveillance capability lies just beyond law enforcement’s capability or authorization.”
If Americans are to place their faith in something of value, that faith should rest first and foremost in the Bill of Rights. Americans’ faith will be ill-spent if that faith is placed solely in institutions of Government; in the empty words of politicians; in the propaganda spouted through the mainstream media on behalf of Government and on behalf of groups bent on destroying the Bill of Rights; in the operations of Government intelligence agencies and federal police forces who claim to provide for the common defence of the Nation, at the expense of the rights and liberties of the American people. Government, after all, does not have a vested interest in preserving Americans’ rights and liberties. It never does. The primary interest of our federal Government – indeed, of all central governments is acquisition of power for itself. If the Bill of Rights is to remain tenable, if it is to exist as something more than a mere but empty expression of the sanctity of the individual, the public must be cognizant of the natural tension that exists between a strong central government and the rights and liberties of the citizenry. If the citizenry willingly accedes to the loss of their rights and liberties, what truly remains of the Nation? Security proffered by Government? But security – real security – of the Nation – for our Nation – truly rests in the rights and liberties of the people as codified and sanctified for the people by the founders of the Nation in our Bill of Rights.
If you are harboring any second thoughts about the sanctity of and importance of your Fourth Amendment privacy rights, or about the critical importance of the Bill of Rights to our Nation’s survival as a free Republic, generally, consider where the greater threat to your rights and liberties reside: Islamic terrorists threatening our shores or a central, federal Government that hungrily amasses for itself ever more power, ostensibly for our benefit if we would be ever so kind to allow the Bill of Rights to fall by the wayside?
We invite reader comment on this article.Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.