The Limits of Privacy

PRIVACY! scream advocates of privacy, and normally I’d be with them.

Apple Unlocked iPhones for the Feds 70 Times Before
Shane Harris / The Daily Beast

Apple CEO Tim Cook declared on Wednesday that his company wouldn’t comply with a government search warrant to unlock an iPhone used by one of the San Bernardino killers, a significant escalation in a long-running debate between technology companies and the government over access to people’s electronically-stored private information.

But in a similar case in New York last year, Apple acknowledged that it could extract such data if it wanted to. And according to prosecutors in that case, Apple has unlocked phones for authorities at least 70 times since 2008. (Apple doesn’t dispute this figure.)

OK: so the “super duper” encryption can be broken. I get it; I saw “The Imitation Game.”

Google News top of the page as this was being written.

No rights are absolute: not the rights of the First Amendment, the Second Amendment nor the rest.

This is the issue. Make no mistake, I was a First Amendment Absolutist for many years, until I realized that there are exceptions to Free Speech: leaking sensitive diplomatic cables that get people killed, for instance. Or yelling “fire” in a crowded theater, nor yelling “HERE WE ARE!” when in a group attempting to hide from determined killers weilding machetes, as happened in the Rwandan Genocide two Jupiter Years ago*.

[* Jupiter takes approximately twelve years to circle the sun. Do the math.]

There is, similarly, no absolute Second Amendment right, as in bringing a howitzer to a high Mass or engaging in ritual actual cannibalism would be legitimately prohibited. Come up with your own examples.

We have been used to this notion that the Constitution is an eternal, never changing document, frozen in time and circumscribed by its language. Some had even maintained that said contract MUST be interpreted according to the understanding of those who wrote it. (OK: see the world as it was before you learned to read. Can’t? Yes. Experience is CUMULATIVE, which is why history isn’t ever what it WAS, but is what it IS to US right NOW.)

Don’t believe me?

Hey, when I was a kid, Custer and Custer’s Last Stand had been venerated and dramatized for approaching a century, but we don’t see Custer as a Grand Hero today. The opposite, in fact. But did Custer change?

No:history is always seen through the prism of our enlightenment and not their ignorance, or else Washington and Franklin won the Revolutionary War with laser beams and precision guided missiles, and were as MORALLY advanced as we are, as well. Thomas Jefferson has always been the absolute defender of untrammeled freedom but held slaves, which morally troubled him.

His “The tree of liberty watered with blood of patriots” line has been quoted for two hundred years as a justification for an absolute right to be a murderous crank who interprets the Constitution as some interpret scripture — many of the latter also handling poisonous snakes thereafter to prove that we tolerate a LOT of religious freedom before having to create an exception to the Absolute.

We are Americans and so everything must be absolute.

But Jefferson was completely wrong on the Industrial Revolution and on American finance, and, while he appeals to the 20 year old idealist, he is impossible to the forty year old pragmatist and childish to the sixty year old geezer’s life experience. Only in his writings did he have the freedom to be an absolutist. In life, there are practical limitations to EVERYTHING. In this case, privacy.

So, APPLE now asserts an absolute right to create encrypted phones that grant an absolute right to privacy. An absolute line must be drawn.

No: the needs of the one can NEVER outweigh the needs of all. This is simple biology. Even when Thomas More stands against the king on principle he is advancing a SOCIAL good.

Even when we prohibit torture (as we had until Dubya took a wrecking ball to American values) it is because of the ultimate social utility of honoring the individual and not giving the opposition an excuse to torture, and not based on any individual need of prisoners of war.

Anthony Kennedy has become a First Amendment absolutist, which was used to create the monstrosities of Citizens United and Hobby Lobby. Scalia was a Second Amendment absolutist and now lunatics roam our fair land carrying battlefield weapons openly. (AR-15s are not really for hunting.)

No: in the case of the San Bernardino terrorists, there IS no personal right to privacy and no social “principle” to be advanced by refusing to decrypt their iPhones.

Seriously.

It is rare that we actually GET a case of someone yelling “FIRE!” in a crowded theater, but here, we DO.

If Apple and all the other defenders of espionage would channel their evil energies into a Constitutional Privacy Amendment, we would ALL be better served.

As it stands, this is, at best, marketing, and at worst, the fundamental Libertarian treason to the greater society that has poisoned GOP politics and Silicon Valley.

Courage.