FBI v Apple

Justice Brandeis, in his dissension of Olmstead v. United States, in which the case revolved around whether wiretaps collected by the government without a court order were a violation of the 4^th and 5^th Amendments, reference his Right to Privacy by stating that “…They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” In The Right to Privacy, the crux is that the 4^th Amendment means that an individual has “a right to be left alone,” free from the peering eyes of other individuals, corporations, and governments. But Brandeis also poses the question: does the right to privacy have limits when what’s private is in the interest of the general public?

That is what the FBI is arguing: that it’s in the interest of national security that the courts compel Apple to eliminate the mechanism on the iPhone which prohibits the FBI from brute forcing the PIN without the data being deleted on the 10^th try. Should Apple comply or fight the court order? For the sake of argument, let’s say that Apple claims the right to privacy as a reason to not comply with the court order, what does have Justice Brandeis have to say? Towards the end of the Right to Privacy he states that “Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case, a necessity which unfortunately renders such a doctrine not only more difficult of application, but also a certain extent uncertain in its operation and easily rendered abortive.” So, if he were alive today, Judge Brandeis would argue that due to national security, Apple’s claim of privacy does not apply and thus must follow the order.

Justice Brandeis also notes that “Still, the protection of society must come mainly through a recognition of the rights of the individual.” That is what Apple CEO Tim Cook argues in his letter to customers when he writes that “The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cyber-criminals.” Apple is arguing that circumventing the iPhone’s protections this one time will pose a future threat to the privacy of not just iPhone owners but to every single person that values their privacy.

In the end, I believe Brandeis would agree with Captain Spock that “Logic clearly dictates that the needs of the many outweigh the needs of the few.” To which Captain Kirk answers, “Or the one.” I also believe that rights have limits (yelling "fire" in a theater), and so does the FBI, as they have picked the perfect case to argue about the balance between privacy and public safety.

__________

https://en.wikipedia.org/wiki/Olmstead_v._United_States

http://www.apple.com/customer-letter/