If the
authors of The Right to Privacy, Samuel D. Warren and Louis D.
Brandeis were alive today and they encountered the Apple/FBI case
they would side with Apple on the matter. In Tim Cook's message to
their customers about the need for encryption he states that
"Smartphones, led by iPhone, have become an essential part of
our lives. People use them to store an incredible amount of personal
information...All that information needs to be protected from hackers
and criminals who want to access it, steal it, and use it without our
knowledge or permission.". Warren and Brandeis would agree with
Cook that the information needs to be protected since they believed
that as new inventions are developed there should be steps "which
must be taken for the protection of the person, and for securing to
the individual what Judge Cooley calls the right 'to be let alone'
(pg.195)". Apple has already provided the FBI all the
information that they had in the aftermath of the San Bernardino
attacks related to the investigation. Apparently that wasn't enough
"Apple has been ordered to write a new software tool that would
make breaking Farook's iPhone password a much simpler process for the
FBI".(Apple and FBI look to Congress to settle battle over
iPhone encryption). If the software tool were to be created by Apple
and implemented into the iOS it would be easier for hackers and
criminals to get to your personal information. Warren and Brandeis
believes that "It is our purpose to consider whether the
existing law affords a principle which can properly be invoked to
protect the privacy of the individual; and, if it does, what the
nature and extent of such protection is."(pg. 197). Having the
court order Apple to create a tool that allows the government to
violate that privacy would be against what they believe.
References
http://www.apple.com/customer-letter/
http://www.theguardian.com/technology/2016/feb/29/apple-lawyer-fbi-bruce-sewell-more-crime
http://www.english.illinois.edu/-people-/faculty/debaron/582/582%20readings/right%20to%20privacy.pdf
I am not sure they would backup Apple on this. As we can see, in the limitation they set themselves, "The right to privacy does not prohibit any publication of matter which is of public or general interest.” That said, this has become a public matter, so they would more likely backup the FBI on this. But this, is if limited on one phone. The problem is, if Apple cracks 1 phone, then any other phone can be cracked with the same method. So then everyone's privacy would be at stake.
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