FBI Seizure of Liberty Safe Passcode Exposes Privacy Loophole: Expert

A seal reading "Department of Justice Federal Bureau of Investigation" is displayed on the J. Edgar Hoover FBI building in Washington, on Aug. 9, 2022. Stefani Reynolds/AFP via Getty Images

The FBI’s seizure of the code to the safe of a man accused of protesting on Jan. 6 has sparked fears over the growing power of government and the erosion of constitutional safeguards.

Christopher Slobogin, a criminal and procedure law professor at Vanderbilt Law School, told the Epoch Times that the current law, as interpreted by the courts, leaves citizens at the mercy of the corporations and businesses who handle our data.

“People would be shocked to realize how little privacy we actually have,” said Mr. Slobogin. “The Supreme Court has ruled that people should have no expectation of privacy when they voluntarily hand over their information to a third party, with the narrow exception of cell phone locations.”

“This means that any information you hand over to any company, can be shared with anyone.”

At the center of the most recent controversy is a vault belonging to Nathan Hughes, 34, of Arkansas, who has been charged with felony civil disorder and several misdemeanors in connection to the Jan. 6 protest at the U.S. Capitol. In a video posted by Mr. Hughes to social media on Sept. 6, he recounted arriving back at his home following his arrest to find his gun safe had been opened.

“ I didn’t even know that was a thing and I come home to see my safe is open after I got out of jail. Pretty crazy. I didn’t know safe companies would do that,” he said.

Mr. Hughes later confirmed that the safe’s manufacturer, Liberty Safe, had turned over his passcode to authorities in response to a warrant. Liberty Safe confirmed in a statement on Sept. 5 that it gave the FBI the access code after receiving a warrant to search the property on Aug. 30.

“Our company’s protocol is to provide access codes to law enforcement if a warrant grants them access to a property,” the company said. “After receiving the request, we received proof of the valid warrant, and only then did we provide them with an access code.”

Boycott Calls

The statement did not appease critics, who immediately began calling for a boycott of the company in the same fashion as Bud Light, which has suffered substantial losses in sales after partnering with transgender influencer Dylan Mulvaney earlier this year.

“Liberty Safe is an enemy to gun owners,” Charlie Kirk, founder and CEO of Turning Point USA, wrote on X. “Your guns are not safe with @libertysafeinc Boycott. Ridicule. Ruin their company.”

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The goal of the provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government. However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law, according to Cornell Law School.

Mr. Slobogin says Liberty Safe was under no legal obligation to reveal the code to law enforcement and did so voluntarily.

“Liberty Safe did not have to hand the passcode over to the government. There was no court order. That was totally their decision,” said Mr. Slobogin.

“Most companies would have demanded a subpoena. Liberty just handed it over. They didn’t even put up an appearance of a fight.”

Third-Party Doctrine

The legal loophole allowing the sharing of data, even that which most people would perceive as private, is legally justified under what has become known as the “third-party doctrine.” The doctrine holds that people who voluntarily give information to third parties—such as phone companies, internet service providers, e-mail servers, and banks—have no reasonable expectation of privacy in that information.

The “third-party doctrine” allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant, according to Mr. Slobogin.

“If we want any privacy, we need to get rid of the doctrine,” said Mr. Slobogin. “The government should have to get a warrant if they want to get your information from a company.”

In the wake of the backlash, Liberty Safe announced late Wednesday evening that moving forward it would “allow customers to have records of their access codes expunged.”

“We understand that many of our customers are willing to assume the responsibility of safeguarding their own combination,” the statement said.

Liberty Safe may have learned a valuable lesson from the ordeal—that for a business, resisting the government could prove a lot more problematic than incurring the public’s wrath.

“While it may not be unconstitutional for companies to share information with law enforcement, they are starting to realize that their bottom line is better served by protecting the privacy of their customers,” said Mr. Slobogin.

“If they don’t, they could be looking at commercial suicide.”