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October 11, 2011

So... Apple released iPhone 4S

Ip42 So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

The San Francisco Police are reported to have stated that “four SFPD Officers accompanied Apple employees to the . . . home. The two Apple employees met with the resident and then went into the house to look for the lost item. The Apple employees did not find the lost item and left the house.”

Of course, a lawsuit has now been threatened. Does it have a chance? Assuming that the consent for a search was invalid because of deception (a big assumption, perhaps), then the Fourth Amendment could have been violated. The general rule is that the Fourth Amendment” is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen466 U.S. 109, 113 (1984).  However, the Court has also held that a person may be deemed a “state actor” when he has acted together with or has obtained significant aid from state officials.  Lugar v. Edmondson Oil Co.,  457 U.S. 922, 937 (1982).

In this case, there is certainly a good argument that the Apple employee were acting as state agents in conducting the search. This would make them liable under the civil rights laws for any violations of the Fourth Amendment rights of the homeowner.

Finally: to add intrigue and a whiff of conspiracy to the story:  the video surveillance tape of the bar has been erased.  

Image: Apple

 

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