Author(s)
Source
Yale University Press, 2011
Summary
This book analyzes the competing interests of privacy and security in the context of developing technology.
Policy Relevance
In order for privacy protection to keep up with developing technologies, regulators should enact broad statutory goals and allow the judiciary to apply those goals to individual cases.
Main Points
- The struggle between individual privacy and national security is often debated, and often the societal interest in security is seen to trump personal privacy. However, privacy should also be seen as a social value, one that need not always be at odds with security interests.
- It is also often argued that policy makers should defer to security officials in determining the degree to which privacy needs to be curtailed because they have more expertise in dealing with national security than judges or legislators. Yet, this kind of deference prevents close inspection of security measures, which should be subject to scrutiny before they automatically cause the expenditure of public resources and the curtailing of private privacy rights.
- In times of national emergency, it is often argued that privacy should be sacrificed in favor of increased security, assuming that the privacy rights will return at the end of the crisis. But it is in times of crisis that privacy needs to be most ardently protected, because this is when the fundamental right to privacy is at its most vulnerable.
- Under current interpretation of the Fourth Amendment, privacy is a constitutionally protected right, setting minimum requirements on police officers before they can conduct a search of private property. Evidence found in violation of the Fourth Amendment is excluded from use during trial; however, this exclusionary rule may not be necessary to protect privacy.
- As new technologies affect developing policy law, the trend has generally been to enact new regulations specific to the new technology. However, in the modern world where technological development is rapid, and legislation is not, a better policy would be to build laws designed to outline and enforce general privacy principles rather than specific technologies.
- In transitioning to broader legislative goals, it is also necessary to return enforcement and interpretative power to the judiciary. Under the current system, these details are largely left to the legislature, preventing case-by-case analysis and adaptation.