When does the individual’s right to privacy trump the right of society to pursue justice and public safety? Neither right is absolute. That issue underlies the FBI-Apple iPhone decryption scuffle, the Microsoft suit against the Department of Justice (DOJ) for its client email gag orders, the 1986 Electronic Communications Privacy Act, and the USA Freedom Act of 2015. The issue is also active for Google, Facebook, most ISPs and others with an Internet presence. Although freshest in the news, Microsoft’s current suit against the DOJ has similar themes to Microsoft’s resistance to handing over dope dealer information (stored in Ireland) to the DOJ. We will relive this privacy Groundhog Day until society makes the rules clear.
Microsoft’s role is not the core issue. Microsoft is a player Shanghaied by the “justice system,” i.e. DoJ, courts and law enforcement (LEO). Instead of doing their own sleuthing and hacking with help from competent agencies such as NSA, the justice system opts for a less embarrassing chain of custody and greater convenience by commandeering Microsoft’s expertise to seize private information that Microsoft secured on behalf of a customer. In thousands of cases, the justice system also forbids Microsoft from revealing that it has been ordered to breach privacy. Microsoft is victimized by having its talent commandeered, its first amendment right to speech gagged, its relationship with customers damaged and sometimes being forced to violate privacy laws in other countries.
Apple built strong privacy features into its iPhone 6. The privacy was secured by encryption and tactics that limited attempts to guess the iPhone’s password. The design specifically precluded a back door entry. The FBI obtained a court order to have Apple crack a terrorists’ iPhone 6, but Apple said it could not technically unlock the iPhone. Subsequently, the FBI found someone who was able to crack the security, and FBI had the court order withdrawn. Soon after, the FBI asked Apple for almost identical help with other iPhones, and the standoff resumed.
Before the justice system tries to claim the high moral ground, let’s recall that the justice system doesn’t always follow the law, and it often obscures the truth. It’s common to have judges pretend that a criminal’s long rap sheet has no bearing on the likelihood of perp’s current innocence, or that an admonition to disregard a witness’ statement can actually erase the jury’s memory of it. Law enforcement sometimes uses illegally obtained information to pursue a case but it hides the true source (called parallel construction).
In the real world, past behavior is an imperfect but credible indicator for current behavior, and by drawing attention to the witness’ statement, the jury’s memory of it is reinforced. How the jury uses the highlighted statement will depend more on how well they respect the judge versus respect their own common sense. Lawyers and judges hold these laughable conceits while editing truth and yet they too often expect us to play along and respect the questionable sausage that they label “the verdict.” This untrustworthy pattern is most present the Foreign Intelligence Surveillance Court where privacy is balanced against public safety and almost all proceedings are entirely secret. Judges have been given more authority in matters of privacy protection than their track record merits. The justice system is a biased authority for selecting the balance between privacy and public safety. The justice system prefers more evidence, i.e. fewer unrevealed private communications.
The Congress brought us the Patriot Act, the USA Freedom Act, and is toying with a law to prevent end-to-end encryption. Congress and the White House don’t have a good track record and appear ready to acquiesce in the justice system’s preferences. The public favors Apple over the FBI on the iPhone 6 decryption issue. A vexing side issue is the need to reach agreement with the EU on privacy protection for the digital information of their citizens. Without that accord, we will pay a heavy price in foregone information services trade.
Some other narrow interest groups will demand that we protect their privacy with everything we have. That will not fly, because some relationships and assets are of greater value to us than their privacy. The public deserves less opacity on protecting privacy but in return must articulate how privacy should be balanced against public safety. We cannot just complain that someone else did it “wrong.”
Individual voters whose rights are directly threatened and whose safety is at risk are the best authority for selecting the principles in that balance between privacy and security. There is no easy formula that can guide them to a resolution, nor should the principles they adopt require convening a citizen’s council for each instance. The voters should select which circumstances in principle merit protecting society at the expense of an individual’s privacy. It sounds a lot like a referendum because it would be, and until we take on this issue, public dissatisfaction will remain high.