This Tuesday, March 22, 2016, Apple will face off with the FBI in a court hearing over the locked iPhone seized after the San Bernardino terrorist attack. Privacy concerns took center stage in February when Apple challenged a court order compelling Apple to unlock the phone by creating software to bypass a security feature of the iOS 8 operating system. Apple’s CEO released a public letter harping on the importance of privacy and security and Apple sent their top attorney into a hearing before the House Judiciary Committee to discuss the danger of creating a backdoor into iPhones. Apple championed its consumers’ privacy rights in the media.
But the concern over consumers’ privacy rights that has been so prevalent in the media is mysteriously absent where it really matters—in court.
Apple’s brief, filed on February 25, focused on statutory arguments and its rights as a corporate citizen. In all the legal maneuvering in the 36-page brief, the privacy rights of Apple consumers were mentioned only in passing. Apple failed to argue that creating a backdoor into the iPhone could jeopardize its consumers’ Fourth Amendment right to privacy.
And make no mistake; Apple could have made the argument.
A legal doctrine known as jus tertii allows a party in a lawsuit to assert the constitutional rights of non-parties to the lawsuit. Meaning Apple could assert the constitutional rights of their consumers, even though the consumers aren’t part of the lawsuit. And Apple would not be breaking new ground here—the Supreme Court has previously allowed a business to assert the rights of its consumers. 
In 1977, the Supreme Court allowed a company to assert its customers’ constitutional rights to be free of gender discrimination, even though the customers weren’t party to the lawsuit. The appeal challenged an Oklahoma law allowing the purchase of beer with low alcohol content for 18-20 year old women but not for 18-20 year old men. A liquor vendor challenged the law based on the rights of its customers. The Supreme Court noted that the liquor vendor was “entitled to assert those concomitant rights of third parties that would be diluted or adversely affected” if the vendor failed in the lawsuit. In other words, even though the liquor vendor was a genderless business, it could legally challenge the law by arguing gender discrimination on behalf of its male and female consumers who would be negatively impacted by the law.
In addition to the business/customer scenario, the doctrine of jus tertii has been used in a variety of contexts: doctors asserting the rights of patients, the NAACP asserting the rights of its members, and the administrator of an education assistance program asserting the rights of students.
But having a valid mechanism to get the argument in front of the court is only half the battle: would Apple’s argument for consumers’ Fourth Amendment rights be successful? As I learned in my first year of law school, the answer is always “maybe.”
The Fourth Amendment issue is not about the information contained on Syed Farook’s phone—the issue is the ramifications of allowing the government to compel Apple to build a backdoor into locked iPhones.
Courts have recognized Fourth Amendment protection for cell phone data. In 2014, the Supreme Court acknowledged a constitutional privacy interest in cellphone data and established a general rule that the government needs a warrant to search a cell phone. Even beyond this general rule, privacy protections exist after a warrant is issued because of the potential for the government to seize more data than allowed by the warrant. A federal judge in California—where Apple’s hearing will occur—has echoed this sentiment, noting that precedent “cautions judges to be especially cognizant of privacy risks when authorizing a search of an electronic device because of the risks inherent in over-seizing data.”
The concern is that, if the FBI successfully forces Apple to create a backdoor, the government will use this as precedent for carte blanche access to locked phones in the future, creating Fourth Amendment issues not only in the way the phone is accessed, but the potential for over-seizing data. And this problem could quickly become widespread. In an interview with NPR’s Rachel Martin in late February, Manhattan prosecutor Cyrus Vance revealed that he asked Apple to break into approximately 175 iPhones that were locked like the phone in the San Bernardino case. And that number represents only a fraction of the phones that could be affected by the decision in this case.
The outcome of this case could have a huge impact on cell phone security for thousands or tens of thousands of iPhone users. The ruling could change the landscape of digital privacy.
And yet, the Fourth Amendment concerns of these consumers will play no role in the hearing this Tuesday, or ultimately in the case, because Apple failed to make the argument in its brief.
But perhaps it won’t matter. In fact, it’s difficult to imagine the federal court in California ruling against Apple after a federal judge in Brooklyn recently ruled in Apple’s favor in a virtually identical case. There’s also a chance that Congress will intervene, either through a legislative measure or by filing an amici brief.
Regardless of the outcome, it would have been nice to see Apple provide a legal framework for the consumers’ privacy concerns it pushed in the media. And in the midst of an election cycle where income inequality and corporate influence on Washington D.C. are key issues, it would have been refreshing to see a multinational corporation put the constitutional rights of everyday Americans at the forefront of a historic legal battle.
*Senior Editor, Rutgers Journal of Law and Public Policy; J.D. Candidate 2016, Rutgers Law School.