Privacy, Encryption and the Fourth Amendment

The Yelp Inc. application is displayed on an Apple Inc. iPhone in an arranged photograph taken in New York, U.S., on Friday,
The Yelp Inc. application is displayed on an Apple Inc. iPhone in an arranged photograph taken in New York, U.S., on Friday, Feb. 5, 2016. Yelp Inc. is scheduled to report fourth-quarter earnings following the close of U.S. financial markets on February 8. Photographer: Chris Goodney/Bloomberg via Getty Images

Many of us are as ardent about preserving the Fourth Amendment protection against unwarranted search and seizure by the state as others are about the Second Amendment right to bear arms. It could be argued that if Fourth Amendment protections are honored, those who claim to fear the government will find it less important to arm themselves.

One of us has more than 50 years' experience in national security matters, including unheeded warnings of terrorist attacks on America. The other is currently the public prosecutor for Manhattan, one of the world's premier terror targets. Yet we yield to no one, including Apple executives, in our commitment to the privacy protected by the Fourth Amendment.

If law enforcement is required to show probable cause to a judge that a crime has been committed or is being planned in order to execute a search, that burden -- not warrant-proof encryption -- is the strongest protection of our privacy from state intrusion.

It is within the context of this inalienable Constitutional right that the current controversy over encryption of an Apple iPhone, used by a deceased terrorist in San Bernardino, arises. A federal magistrate has ordered Apple to provide unique software code to help disable a security feature on this phone so that federal investigators can determine if the perpetrator was communicating with others in a network -- others who might themselves be plotting similar attacks.

Supported by other companies in the communications technology industry, Apple is resisting the court order on the grounds that providing sworn federal agents with secret software code to assist in their unlocking of one device will jeopardize the privacy of its millions of customers.

Apple and its peers care about selling electronic devices. We care about the rigor of the Fourth Amendment and the security of the American people. Protecting security and privacy, as it has been endlessly pointed out, requires a delicate balance of interests. But the case under discussion rests on its own facts, and those facts are that the privacy of the owner of this phone is not at issue. He is dead. He committed a brutal act of terrorism. And he may, or may not, have been part of a network. If he was, the security of the people remains at risk. Data on his phone -- this particular phone -- may help protect that security.

Apple and privacy advocates see this case as a dangerous slippery slope jeopardizing the privacy of millions of smartphone users. This is a false argument. The Fourth Amendment will require any future law enforcement agency to establish probable cause that a crime has been committed or is being planned before the unlocking of any future smartphone can be ordered.

It is the Constitution of the United States, not the commercial interests of Apple, that protects our privacy. It protects our security as well. Our judiciary is required by that Constitution to demand that the government establish probable cause case-by-case and phone-by-phone. That requirement, not the encryption technology of a private company, is our best protection from abuse.

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