What do you think of Apple CEO Tim Cook’s decision to fight a court order requiring Apple to decrypt an iPhone belonging to Syed Farook, the terrorist who massacred 14 innocent people late last year? Professor Orin Kerr has written up a thoughtful tentative analysis of the recent Apple iPhone court order. Among other things, he notes that the actual owner of the particular iPhone that the FBI wants to crack is not a private citizen but rather San Bernardino County:
“… even if the [FBI] didn’t have a warrant, the [FBI] has the consent of the phone owner. The phone in this case was owned by the San Bernardino County Department of Public Health, Farook’s employer. Farook used it, but the county owned it. The county has already consented to a search of the phone. Some have speculated that the people who communicated with Farook may have Fourth Amendment rights in their communications on the phone. Not so. When you send a communication to someone, you lose Fourth Amendment rights in the communication when the message arrives at its intended recipient. As a result, you have no Fourth Amendment rights in someone else’s phone just because you sent them messages. And even if you did have such rights, either the warrant or the phone owner’s valid consent — or here, both — would ordinarily trump them.”
Critical thinking questions: Instead of forcing Apple to decrypt Farook’s iPhone via a court order, what if the FBI offered to pay Apple to unlock the iPhone? Why doesn’t the Coase theorem work here?