The Privacy Problem: Security vs. Security

By David K. Shipler

            We might be approaching a tipping point about privacy, as dramatized by the Apple-FBI dispute over decrypting a terrorist’s iPhone. After years of seeing privacy and safety as opposites in the war on terrorism, important segments of American society seem to be recognizing personal security and national security as parts of the same whole, not as a dichotomy in a zero-sum game. If this evolution continues, it could eventually produce a significant correction to the surveillance state that developed after the trauma of Sept. 11, 2001.

In the meantime, however, the two versions of security are colliding: the government’s rising concern about security from crime and terrorism in an age of digital encryption on the one hand, and, on the other, the public’s heightened interest in security from hackers, identity thieves, cyber-ransom demands, and—yes—government surveillance. Both sets of anxiety are justified. How to resolve the clash intelligently is far from clear.

The FBI’s effort to force Apple to create new software to disable an iPhone’s security features is propelling the courts forward in time at a faster speed than they typically travel. They usually lag well behind technology. But now they and Congress need to catch up quickly. That phone and hundreds of others sit in evidence lockers waiting to be cracked by law enforcement, requiring a creative effort by judges, legislators, prosecutors, and high-tech companies to make it possible—legally and technically—to execute a legitimate search warrant on a particular device without the risk of compromising security on all such devices.

The "Expectation of Privacy" and Surveillance in the 21st Century

As published at thenation.com June 17, 2013

By David K. Shipler

In 1928, the Supreme Court ruled that no warrants were needed for police to listen in on phone conversations, because voices were transmitted outdoors, beyond the private property that was protected by the Fourth Amendment. “The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” the majority wrote in Olmstead v. United States. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”

If this sounds absurd, we can hope that today’s arguments on the forfeiture of privacy in a digital age will someday sound equally ridiculous. The telephone was still a relatively new technology in 1928, as cellphones and the Internet are today, and the law had not yet adjusted to its use. It took thirty-nine years for the Supreme Court to catch up with the times and reverse Olmstead. In Katz v. United States, the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable,’” as Justice John Marshall Harlan II wrote in a concurring opinion. Thereafter, wiretaps required warrants.