Weighing the Costs of Privacy and Security

Security. For most people, this means putting their money in a bank, having basic home security, and their birthday as passwords on their computer. A simple concept, which for the most part is inexpensive.

However, on a national scale, security becomes prohibitively expensive. Not only because of money, but rather because of the cost to citizens’ privacy and liberty. These costs were emphasized when, in the wake of the San Bernardino terror attack, the Department of Justice (DOJ) demanded that Apple should create a program which would allow the DOJ to access the information in San Bernardino terrorist’s phone under the All Writs Act of 1789.1 When Apple refused, the DOJ won a federal suit to compel Apple to produce such a program.2

This particular request is almost unrivaled in its audacity compared to previous advances by the United States Government.3 While national security is vital to our nation’s interests, this grab at power by our government ups the ante. It does not only limit private citizens, corporations, and entities in a preventative sense, but rather forces them to act.

There are three problems with this. First, providing the government with access to anyone’s private phones, computers, and documents at any time may violate the Fourth Amendment.4 Second, to force a citizen or entity to act affirmatively can violate their basic freedom and liberty under the First and Fifth Amendments.5 Finally, when an executive branch gets to decide what can be demanded from a citizen in the name of homeland security judicial oversite is limited.6 The only remaining question would then be what can your country request/demand from you. If you ask Stalin or Mussolini, a lot.

Until now, and even with the recent policy decided in Sebelius7, the government could only compel private citizens to act in very limited circumstances. However, compelling private entities to create and do things as the government wishes, is a vastly enlarged scope of government power with untold realities. Of course, anything done will be in the name of national security and the United States’ interest. However, the key phrase is “national” security. Essentially, this is for the “greater good”, not the personal citizen. Further, everything has a good reason and a real reason, all the government needs to put forth to compel citizen action under rational basis is the good reason.

Also, as evidenced by the debacle between Edward Snowden and the NSA,8 once the government has power it cannot be blatantly assumed that the government will use such power appropriately and fairly. If the government would be able to compel entities to produce programs, what else can the government compel? Can the government demand every citizen register and produce the keys and passwords to their home, car, personal locker, computer and phone “just in case” the government needs to enter? True, in this instance, this request was part of an investigation proceeding, but this was not a request which specifically applied to that security situation, this request encompassed the privacy of millions of users. Further, it demanded that Apple affirmatively act.

However, in conclusion, one has to wonder based on the amount of access millions of users sign away on phone contracts and signing up for the latest apps, how much we as a society value our privacy, and therefore, how much such privacy concerns should weigh against our national security needs.

  1. Peter A. Crusco, TECHNOLOGY TODAY, New York Law Journal, Apr. 26, 2016, at 5.
  2. The DOJ later cracked the phone using outside help. Id.
  3. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2571 (2012) (Specifically, the abuse of power through the executive branch).
  4. Analogous to: Who would go to the restroom when someone may walk in on them at any time unannounced?
  5. Https://en.wikipedia.org/wiki/Edward_Snowden.
  6. See e.g., Dep’t of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 193 (2015) (Regarding the N.J. Supreme Court’s unanimous express disapproval of The Division of Child Protection and Permanency’s complete disregard for judicial and legislative guidelines.).
  7. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2571 (2012)
  8. See https://en.wikipedia.org/wiki/Edward_Snowden

Author: Michael Roberts

Michael Roberts is an Associate Editor for Rutgers Computer & Technology Law Journal. Michael has studied Talmudic Law for 18 years covering topics such as martial, tort, judicial, evidentiary, sales, contractual, lending and monetary law. Michael has a passion for contractual law and litigation currently attends Rutgers Law School to pursue a J.D. and career as a negotiator and litigator. Michael has spent the past summer working for Justice Lee A. Solomon of the Supreme Court of New Jersey developing his understanding of what impacts and affects the outcome of cases at each level of the litigation process.