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Monday, March 2, 2026
QUESTION OF THE WEEK NO. 7
Should any designer of an operating system for a smartphone or tablet that is manufactured, leased or sold in the United States be legally required to ensure that data on such devices is accessible pursuant to a search warrant?
In order for a judge to issue a search warrant there must be probable cause for law enforcement officers to conduct a search. As far as I am aware, it is not legal for either the individual(s) being subject to the search or a third-party to deny police access. However, there is a question of data storage, are they just going to keep the data indefinitely or just for the duration of the investigation?
The data that is stored on a device should be accessible to law enforcement with a warrant, if it's stored locally. However, users should maintain the right to delete data off their device, so if they go through and remove things or factory reset their device, then there's nothing for law enforcement to find. If you're gonna do illegal shit just cover your tracks a bit...? That's my thought.
Sufficient probable cause must be present for law enforcement to execute a warrant in order to access various entities. Any and all devices should not be excluded from this logic, meaning if a device is listed in an approved warrant, the information that comes with/in that device should also be included.
After reading the additional publication, does requiring the handing over of passwords to law enforcement for specific devices violate the Fifth Amendment, specifically addressing self-incrimination protections? Would listing a request of the passwords in what is being requested to search solve this problem? There is an argument referencing the proof needed to demonstrate a suspect’s knowledge of passwords tied to the/an encryption. However, as the article states, “recent cases addressing these varying encryption issues continue to provide inconsistent guidance to law enforcement, and reaffirm the conclusion that legislation is needed here” (The Manhattan Project, 14). Another point regards the concern, presented in one of the week’s articles, addressing the encryption backdoor debate. Encryption secures personal information, while encryption backdoor processes allow for the bypass of those encryption measures. At least in my mind, if the backdoor option is simply handed to the government or law enforcement agencies, this would go against the general principle of encryption. In other words, this would allow enforcement to bypass security measures and obtain varying levels of information on numerous devices. There is an argument suggesting that the backdoor loophole is essential for various investigations, but this route ultimately opens the window of excessive exploitation.
In sum, I do support the idea that data stored on devices should be accessible to investigation processes via a judicial search warrant, as long as the Fifth Amendment is not interfered with and backdoor encryption routes are not used.
I see this primarily as a technological problem. Strong encryption methods without backdoors will always exist regardless of whether commercial operating systems use them, so requiring backdoors would have unintended side effects. Criminals would be able to find workarounds, but the average user wouldn't get the same benefits as encryption without a backdoor. Policies that affect the average person negatively while having little affect on the very people they're targeting are poorly thought through in my opinion.
I agree with Will that this is a technological problem. As far as I know, legally, if a specific person is subject to a search warrant, they are already required to unlock their device or give up the data, and this can be handled by the courts in existing ways. I think this would fall under obstruction of justice, similar to trying to physically prevent police officers with warrants from entering a building, destroying or refusing to surrender documents that the warrant states may be evidence, etc. Requiring technological means like a backdoor would be primarily effective in allowing law enforcement to access devices *without* a warrant, creating opportunity for abuses without major benefits to the normal operation of justice.
No, I agree with Alex and Will. Legally speaking, a search warrant requires the subject to give up certain data or information etc etc. If a person chooses not to do this they will end up in jail. Utilizing the third party doctrine in this case is not reasonable as it can be argued that smartphones and the internet are necessary for life in the modern age. Additionally, it creates a shadow law enforcement that allows large companies to give away data on a subject(even with a search warrant). Call me old fashioned, but in most cases, a search warrant should not be conducted surreptitiously. If a police officer has a search warrant it makes logistical sense to search the phone instead of contacting a third party provider unless in certain severe cases.
I think a really valuable part of this question is the last bit, "to ensure that data on such devices is accessible pursuant to a search warrant?" Regarding the actions to get a warrant approved, I think that validates the need for acquiring such data because there is an absolute need (considering the warrant was approved by a judge). As Henry brought up, I think that this only includes data that is locally stored, and if something is properly deleted or removed, the agencies must respect the desires of the user, and must also remove that properly. I don't think that acquiring a warrant to seek information on deleted information that was improperly stored is morally right. If I were to delete something, I would hope that the software I am using also properly disposes it also.
I'll start by saying, if the data is available on a device and law enforcement has a search warrant, I see no issue with law enforcement using available tools to access that data. I do not, however, believe that manufacturers need to design devices in such a manner that law enforcement can access them. That's like saying gun safes need to be designed in such a way that law enforcement can access them if needed. As a regulation, it's both ridiculous and over-reaching. This preemptive action, designed for law enforcement, hinges on an assumption of a possibility of guilt. If someone wants a tablet with data that is nearly impossible to access, that should be up to them and none of the government's concern.
Yes.
ReplyDeleteIn order for a judge to issue a search warrant there must be probable cause for law enforcement officers to conduct a search. As far as I am aware, it is not legal for either the individual(s) being subject to the search or a third-party to deny police access. However, there is a question of data storage, are they just going to keep the data indefinitely or just for the duration of the investigation?
Yes,
ReplyDeleteThe data that is stored on a device should be accessible to law enforcement with a warrant, if it's stored locally. However, users should maintain the right to delete data off their device, so if they go through and remove things or factory reset their device, then there's nothing for law enforcement to find. If you're gonna do illegal shit just cover your tracks a bit...? That's my thought.
Generally, yes.
ReplyDeleteSufficient probable cause must be present for law enforcement to execute a warrant in order to access various entities. Any and all devices should not be excluded from this logic, meaning if a device is listed in an approved warrant, the information that comes with/in that device should also be included.
After reading the additional publication, does requiring the handing over of passwords to law enforcement for specific devices violate the Fifth Amendment, specifically addressing self-incrimination protections? Would listing a request of the passwords in what is being requested to search solve this problem? There is an argument referencing the proof needed to demonstrate a suspect’s knowledge of passwords tied to the/an encryption. However, as the article states, “recent cases addressing these varying encryption issues continue to provide inconsistent guidance to law enforcement, and reaffirm the conclusion that legislation is needed here” (The Manhattan Project, 14). Another point regards the concern, presented in one of the week’s articles, addressing the encryption backdoor debate. Encryption secures personal information, while encryption backdoor processes allow for the bypass of those encryption measures. At least in my mind, if the backdoor option is simply handed to the government or law enforcement agencies, this would go against the general principle of encryption. In other words, this would allow enforcement to bypass security measures and obtain varying levels of information on numerous devices. There is an argument suggesting that the backdoor loophole is essential for various investigations, but this route ultimately opens the window of excessive exploitation.
In sum, I do support the idea that data stored on devices should be accessible to investigation processes via a judicial search warrant, as long as the Fifth Amendment is not interfered with and backdoor encryption routes are not used.
No.
ReplyDeleteI see this primarily as a technological problem. Strong encryption methods without backdoors will always exist regardless of whether commercial operating systems use them, so requiring backdoors would have unintended side effects. Criminals would be able to find workarounds, but the average user wouldn't get the same benefits as encryption without a backdoor. Policies that affect the average person negatively while having little affect on the very people they're targeting are poorly thought through in my opinion.
This comment has been removed by the author.
ReplyDeleteNo.
ReplyDeleteI agree with Will that this is a technological problem.
As far as I know, legally, if a specific person is subject to a search warrant, they are already required to unlock their device or give up the data, and this can be handled by the courts in existing ways. I think this would fall under obstruction of justice, similar to trying to physically prevent police officers with warrants from entering a building, destroying or refusing to surrender documents that the warrant states may be evidence, etc.
Requiring technological means like a backdoor would be primarily effective in allowing law enforcement to access devices *without* a warrant, creating opportunity for abuses without major benefits to the normal operation of justice.
No,
ReplyDeleteI agree with Alex and Will. Legally speaking, a search warrant requires the subject to give up certain data or information etc etc. If a person chooses not to do this they will end up in jail. Utilizing the third party doctrine in this case is not reasonable as it can be argued that smartphones and the internet are necessary for life in the modern age. Additionally, it creates a shadow law enforcement that allows large companies to give away data on a subject(even with a search warrant). Call me old fashioned, but in most cases, a search warrant should not be conducted surreptitiously. If a police officer has a search warrant it makes logistical sense to search the phone instead of contacting a third party provider unless in certain severe cases.
Yes.
ReplyDeleteI think a really valuable part of this question is the last bit, "to ensure that data on such devices is accessible pursuant to a search warrant?" Regarding the actions to get a warrant approved, I think that validates the need for acquiring such data because there is an absolute need (considering the warrant was approved by a judge). As Henry brought up, I think that this only includes data that is locally stored, and if something is properly deleted or removed, the agencies must respect the desires of the user, and must also remove that properly. I don't think that acquiring a warrant to seek information on deleted information that was improperly stored is morally right. If I were to delete something, I would hope that the software I am using also properly disposes it also.
No.
ReplyDeleteI'll start by saying, if the data is available on a device and law enforcement has a search warrant, I see no issue with law enforcement using available tools to access that data. I do not, however, believe that manufacturers need to design devices in such a manner that law enforcement can access them. That's like saying gun safes need to be designed in such a way that law enforcement can access them if needed. As a regulation, it's both ridiculous and over-reaching. This preemptive action, designed for law enforcement, hinges on an assumption of a possibility of guilt. If someone wants a tablet with data that is nearly impossible to access, that should be up to them and none of the government's concern.