Page 115 - Privacy in a Cyber Age Policy and Practice

LIBERAL COMMUNITARIAN APPROACH TO PRIVACY AND SECURITY 103

However, the Fourth Amendment and the liberal communitarian approach
it reflects divide searches between those that are reasonable and those that
are not, and hence reasonable searches do not constitute an intrusion and are
not a violation of privacy. That is, the normative and legal realm is divided
between segments in which security should take precedence and those in
which privacy should. The discourse should be about where the bound-
ary lies. It is hence misleading to argue as if the whole domain was that of
privacy and any attention to security entails a diminution of privacy. The
“turf” is divided between these two concerns from the get-go. (It is hence
just as untenable to argue that the realm is one of security only and that any
concern for privacy ipso facto entails a diminution of security.)

3. Anti-Balance Arguments

Because the idea of balance is at the essence of the approach here followed—
and because it has been directly challenged—I offer a brief defense of the
concept. Some critics contend that one should not think in terms of “balance”
when weighing the values of privacy and security. For example, Marc
Rothenberg writes
When we confronted the issue of privacy . . . we could not say that we needed
to balance privacy and security. Both interests are substantial. . . often times
in discussions where people said, “Well, privacy is important but so is the
First Amendment;” “Privacy is important but so is open government;”
“Privacy is important but so is this other thing.” And on many of these issues
we came to realize that if you look closely there may be a way to pursue both
interests simultaneously. 9

David Medine, the chairperson of the Privacy and Civil Liberties
Oversight Board, made this point strongly when he stated that “the 9/11
commission and President Obama have said—and I certainly believe—that
we can have both strong security and strong protections on privacy and
civil liberty, and our job is to try to maximize both.” 10
One wonders if one can maximize any value, even when it is not in
conflict with some other value, in the real world, which is full of constraints.
One further notes that much of ethics concerns itself not with delineating
right from wrong, but rather with exploring the tension between various
goods—for instance, trade-offs between equality and freedom. True, there
are conditions in which both security and privacy can be enhanced; for
example, when a regime collapses and a measure of law and order is restored
after a period of chaos and lawlessness. However, under most conditions
some balancing is needed because both values cannot be maximized. Thus,