Abstract
Smartphones have swiftly replaced most-if not all-conventional methods of sending, receiving, and storing personal information. Letters, address books, calendars, and trips to the bank have been rendered obsolete by tools such as text messaging, digital contacts, iCal, and mobile banking apps. Although these digital alternatives are convenient, they are not immune from attack. Therefore, to remain competitive, technology companies must maintain safe and secure platforms on which users may freely store and share their personal information.
Apple Inc., for example, strives to protect its users' intimate information, consequently earning a reputation for prioritizing security. Like a king protecting his castle, Apple has erected a variety of technological and legal barriers to guard its users' data and ward off unwanted intruders from vulnerabilities at a variety of stages. First, to protect user data from unauthorized access, Apple's software authorizes iPhone users to set their own passcode. Next, Apple encrypts its iPhone software, essentially placing adigital padlock on its software to preclude any software alterations, including the user-determined passcode functionality. Lastly, Apple copyrights its encryption padlock, discouraging rogue actors from circumventing its technology and security features in fear of civil or criminal implications.
In the spring of 2016, however, the federal government pillaged Apple's digital fortress, overcoming each of these barriers. The Federal Bureau of Investigation (FBI) was investigating the terrorist attack in San Bernardino, California, and Apple's security mechanisms precluded access to a shooter's iPhone, which was locked with the user-determined passcode. Nonetheless, the FBI hired professional hackers to alter Apple's software, thereby circumventing Apple's encryption and ignoring Apple's copyrights, to access the iPhone.
Although the FBI opened just this one phone, just this one time, its hacking has much broader implications. By altering Apple's software to circumvent its encryption, it smashed Apple's digital padlock, essentially creating a master key capable of opening hundreds of millions of iPhones, jeopardizing users' intimate information. The FBI has devalued Apple's coveted security and risked Apple's reputation. Despite Apple's copyright, Apple has no statutory remedy available; however, the Takings Clause in the Fifth Amendment of the United States Constitution affords Apple a simple solution.
This Note contributes to the contentious debate about prioritizing individual privacy in the face of increasingly innovative and complex national security threats. It suggests a novel way to deter governmental intrusion by establishing that Apple's copyrights are "prroperty" under the Fifth Amendment and by characterizing the FBI's investigative conduct in the San Bernardino case as a "taking" under the Fifth Amendment. Constitutionally requiring the federal government to pay 'just compensation" necessarily compels it to consider in its calculus the economic consequences of circumventing a technology company's encryption, potentially preventing such intrusion in the first place.
