Server Room ()
The penultimate episode of Bull’s first season deals with a privacy issue not unlike that which Apple Computers faced in 2016. A computer server company called Heptix is in possession of encrypted computer servers that likely contain information leading to terrorists. The federal government requests the company unlock the servers. Worried that their customers will no longer trust Heptix to store data if they comply, the company refuses. Although the precise posturing on the case is unclear—Heptix’s lawyer asks the jury “to vote not guilty on the government’s motion”(?)—but suffice it to say Dr. Bull represents the company.
When this case emerged in real life, it set off a firestorm of opinions. You’ll remember that the FBI called upon Apple to unlock the encrypted iPhone of the attacker who killed 14 people in San Bernardino, California; Apple refused. At the time, some accused the company of being anti-American for refusing to help, while others celebrated its stand against surveillance. Note that a big difference between that case and Dr. Bull’s is that Apple was being asked to create a new decryption key, whereas Heptix already has one. Regardless, both cases pose a central question of political life in twenty-first century America: To what extent should citizens forfeit their right to privacy in the name of national security? Enter the jury.
The Founders understood the power and wisdom of 12 ordinary people. So much so that they entrusted them with guarding against government overreaches by embedding the jury throughout the constitutional structure. This is particularly true of the Fourth Amendment’s protections. The Founders expected that citizens would protect themselves against searches by suing the government for unreasonable trespass. And, of course, the Seventh Amendment protected citizens’ right to do so before a jury of their peers. As famed constitutional scholar Akhil Amar explains, the Founders anticipated that the jury would give meaning to the term “unreasonable.” In this way, a local standard would define the constitutional right to privacy against the national government.
Time has moved us a long way from this ideal. Today, searches are carried out mostly through a sophisticated regime, in which judges grant warrants in advance. And the Supreme Court has held that even if a warrant is deficient in some way, it still may be reasonable for an officer to rely upon it. Despite this, the jury remains a core institution standing between the government’s prying and the accused’s privacy. True, the jury does not define the precise contours of the Fourth Amendment’s protections; but in deciding cases implicating privacy, the jury considers what is permissible and under what conditions. Indeed, juries retain the power to acquit and award, subject only to due process considerations.
At the end of this week’s episode, Dr. Bull pulls one of his patented magic tricks. Not only does he convince the jury to not force Heptix to unlock their servers, he and his team are able to do it themselves. They discover that one of the company’s employees aided the terrorists and have him promptly arrested. And so closes yet another win-win for Dr. Bull.