[Cryptography] Govt Can't Let Smartphones Be 'Black Boxes, ' Obama Say

[Jerry Leichter]

> Yes, we as citizens grant our government the right to search private property with a proper search warrant. But we don't grant anyone the right to search our minds. A computing device is more than just an inert piece of "property" - it is an extension of our brains. Maybe only figuratively today, but brain-machine interfaces aren't far away, and then it will be the literal truth. And again, I sure as heck will not be granting anyone the right to search any components of my mind. Nor should I need to - the 5th Amendment already guarantees that.
This is completely wrong.  The moment you let a piece of information outside of your brain - by saying it, by writing it, even just by some little wink to someone - it's outside the protection of the Fifth Amendment.  It's always been this way.

The purpose of the Fifth Amendment is not to protect your private information - it's to protect *you* against the kind of compulsion that would be applied to extract that information, if the government were allowed to use it.

There have been a few carefully circumscribed exceptions to the general rule that "once it's out of your head, it's fair game":  Discussions with your lawyers, your priest, your spouse (but not other family members!), your doctor (sometimes).  But again, if you look at why these exceptions exist, they again have nothing to do with your privacy as such; they are there explicitly to preserve a perceived greater social good (allowing defendants to get good legal advice; the sanctity of the religious experience/the marital relationship; the need for honesty in getting medical care).

None of these apply to the use of phones.  You could argue that perhaps they *should*, that the relation between a person and his phone is now so close that it needs protection - but it's not an argument the courts, or the political system, are likely to take seriously.  In fact, the general trend has been in the opposite direction - from the ever-broader application of the third party doctrine, to laws written in response to Enron's shredders that have broadened the crime of "destruction of evidence" to just about anything that might, at some point, be of interest to any prosecutor.

There are plenty of arguments for why the FBI's attempt to order Apple to do its bidding should be blocked, but I'm afraid this isn't one of them.

                                                        -- Jerry