Page 150 - Privacy in a Cyber Age Policy and Practice

138 PRIVACY IN A CYBER AGE

closely associated with the violation of privacy. Actually, in the cyber age,
these boundaries have been blurred. If the government has ready access
to private data banks, they do not—by definition—provide extra privacy
protection, and if the data banks are not readily accessible, they hinder
counterterrorism drives.
One may say that the phone companies could review the government
requests and, thus, serve as a sort of privacy-protecting screen. However,
on what basis could a phone company lawyer deny government access in
the face of government claims that protecting national security requires
such access? Should the government reveal to company lawyers, who
would lack security clearance and the relevant experience and training
when it comes to such matters, the reasons it is interested in a particular
set of records? Should phone companies set up their own FISA-like courts
to second-guess the government? The answer seems clear: the companies
are not in a position to second-guess the government.
The issue of accessibility is becoming more important as the govern-
ment struggles to keep pace with encryption technology. In the wake of
the NSA leaks, U.S. tech firms have faced a backlash not only from pri-
vacy advocates 120 but from foreign governments and businesses concerned
about U.S. surveillance. 121 In response, tech companies are strengthening
their data security measures. 122 Particularly troubling to the effort to bal-
ance privacy and security is the plan by some companies to encrypt their
data, and their refusals to grant backdoors to the NSA. Indeed, Apple’s
iPhone 6 has encryption capabilities that Apple itself cannot bypass, even if
instructed to do so by a judge once it was established that the user is a ter-
rorist. 123 I leave it to the lawyers to figure out if such encryption qualifies as
obstruction of justice, but it surely violates the conception that reasonable
searches should be allowed.
In short, the key question related to having the records kept in private
hands is whether they would be easily accessible to the government in case
of a pressing national security need. If this were the case, it would be only
cosmetically different from having the government store the records; if not,
the government’s ability to fight terrorism would be hindered. Not only is
guaranteed access to the records needed, sometimes on short notice, and
technical reasons exist for allowing the government to keep the records—
one should recognize that keeping these records in private hands adds little
to privacy protection.
Taking into account all these considerations, it seems that the phone
surveillance program’s “correction” to the liberal communitarian balance
between individual rights—especially privacy—and national security
is limited and not excessively intrusive, abides by the constitution and
prevailing law, is structured in a reasonable manner, and contributes to