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Not about to hit the back burner: smartphones and surveillance

The United States is a country perhaps most marked by its complexity, which can seemingly emerge at just about any time and regarding any subject. On any given day (and this is especially true in the criminal law sphere), a topic can suddenly galvanize the public and become a hot-button issue, with ardent adherents on both sides of any debate discussing it.

Take smartphones and a term related to them has come into the public parlance only relatively recently, namely, the "back door."

Simply put, and as alluded to in our March 1 post entry, that door is an access enabler allowing criminal investigators to bypass phone security protections and become privy to data and information that a phone owner deemed to be private and off limits to government surveillance.

Talk about a can of worms in a democratic society and the vociferous debate that emerges whenever government officials offer up arguments as to why such access is reasonable and unproblematic.

That proverbial can was thrust wide open recently, with a lawsuit filed against Apple encompassing the demand of the government that Apple engineers unlock a smartphone passcode in a given case. The company has steadfastly refused to do so.

The matter goes on. Interestingly, it now involves the nation's highest executive, as noted by public comments advanced by President Obama late last week at a music, technology and arts festival.

In a discussion with a newspaper editor, Obama complained that, while authorities can obtain a warrant to search a criminal suspect's home and possessions, that individual's phone "is somehow off limits."

"[T]hat can't be the right answer," he said.

Perhaps there is no absolutely correct and above-the-fray answer to the question of where the line should properly be drawn between crime fighting efforts and citizens' privacy expectations.

Many critics of an aggressive government position readily argue, though, that the balance must always and unequivocally favor constitutional imperatives that spell out and clearly support fundamental rights of security and privacy for all Americans.

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