For my article on what I think the authors opinion would be,
I chose The Right to Privacy from the December 15, 1890 Harvard Law
Review.
The authors begin by telling us that our rights have evolved
from physical items such as the right to secure property, to intangible items
such as the right to enjoy life and the right to be left alone.
They use the example of the press invading people’s privacy
by publishing photos and spreading gossip. The authors state that newspapers
have the ability to publish information that can cause more stress and
emotional harm to people than physical harm can.
The authors seem to have very strong feelings concerning the
right to privacy and do not feel that the laws of their time adequately protected
ones privacy. During their time the only technology that exists to breach ones
privacy was photography and newspapers. In 1890 they could never have imagined
a world filled with mass media outlets, the internet, YouTube, Instagram, cell
phones and texting where stories and photos could be spread throughout the
world in seconds. Given people’s perception of what privacy should be, they
would be appalled at how modern society has willingly allowed their privacy to
slip through their fingers.
On page 23 the authors state that “to determine in advance of
experience the exact line at which the dignity and convenience of the
individual must yield to the demands of the public welfare or of private
justice would be a difficult task”. It is here that the authors start
to make the point that judging when privacy must yield to the public good is
not an easy judgement.
The authors go on to give an example of a person with the
lack of certain abilities. They state that if it is an average person then it
is no one’s business but that if the person was running for public office, then
voters have the right to know. They are making a judgement when it is justified
to make public certain information. In my opinion they are applying the
principal of diminishing the right to privacy in favor of the greater good and
protection of the public.
Near the bottom of
page 24 the authors write, “Any rule of liability adopted must have in
it an elasticity which shall take account of the varying circumstances of each
case”. In my opinion, here the authors are stating that as much as the
right to privacy is important, privacy laws need to be flexible depending on
the situation.
On the top of page 25 the authors sate, “In
general, then, the matters of which the publication should be repressed may be
described as those which concern the private life, habits, acts, and relations
of an individual, and have no legitimate connection with his fitness for a
public office which he seeks or for which he is suggested, or for any public or
quasi-public position which he seeks or for which he is suggested, and have no
legitimate relation to or bearing upon any act done by him in a public or quasi-
public capacity.” If I were arguing the case of what the authors would
think in the case of Apple versus the FBI the above quote would be the last
sentence in my closing argument. Here they are specifically stating that a
person has the right to privacy so long as that privacy does not concern any
act that he has committed that effects the public. After reading that section I
have absolutely no doubt, and you must agree, that the authors would be fully
in favor of Apple conforming to the court order to decrypt information found on
the cell phone of those that perpetrated this most heinous crime against the
people of San Bernardino. People of the time that the article was written had
little tolerance for criminals. Especially criminals that are anti American and
whose sole purpose in life it to harm citizens of the United States. The more I
read on from page 24 of the article, the more I am convinced by their
statements, that the authors would be in favor of doing what is best for the
public good. Keep in mind that they still feel strongly about one’s right to
privacy and are not in favor of making public one’s information that does not
affect society in anyway.
On page 28 the authors state, “Still, the protection of society
must come mainly through a recognition of the rights of the individual.” This
reminds us that although they are concerned with the common good, the
protection of society starts with the right to privacy.
In A Message to Our Customers Tim Cook, CEO Apple Inc.
goes on about the depth of private information people store on their phones. People
store the same kind of information in other forms such as hard copy, on their
computers and tablets? Our information is also stored in countless databases at
banks, hospitals and financial institutions. If probable cause exists, the
fourth amendment allows law enforcement to obtain a warrant to gain access to
that information. I’m sure that the authors of Why Privacy is Important
would agree based on their statements, that once your actions effect the
public, that information should become public domain.
In FBI director James B. Comey makes personal, passionate
plea on Apple-San Bernardino controversy
Director Comey stated “It
is a big problem for law enforcement armed with a search warrant when you find
a device that can’t be opened even though the judge said there’s probable cause
to open it”.
This simple statement reflects that fact that an iPhone is
just another device that is subject to existing laws of the land. In their time,
the authors of The Right to Privacy would never have imagined iPhone
encryption but they were quite familiar with diaries which they referred to six
times in their article. From reading their article I am left with the
impression that the diary of a mass murderer should be made available to law
enforcement. Comey more directly addresses that this is a matter of balance
between privacy and safety that will effect Americans for a long time. The
Right to Privacy article did address it in a les direct manner but appears to
favor the safety of the public good over the privacy of an individual.
References:
·
Why Privacy is Important, James Rachels, Philosophy
& Public Affairs. Vol. 4, No. 4 (Summer, 1975), pp. 323-333
·
The Right to Privacy, Author(s): Samuel D.
Warren and Louis D. Brandeis. Source: Harvard Law Review, Vol. 4, No. 5 (Dec.
15, 1890), pp. 193-220.
·
A Message to Our Customers Tim Cook, CEO Apple Inc.
February 16, 2016
·
FBI director James B. Comey makes personal,
passionate plea on Apple-San Bernardino controversy By Justin Wm. Moyer
February 22, 2016
·
Apple’s Encryption
Battle with the FBI has Implications. The Guardian, Sam Thielman February 20,
2016
·
Fight for the Future Press Release, Holmes
Wilson February 17, 2016
