Magazine article Information Today

Liberty or Safety: Should the Law Fall Mute?

Magazine article Information Today

Liberty or Safety: Should the Law Fall Mute?

Article excerpt

Benjamin Franklin really did say, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Well, technically, he wrote those words in a letter 20 years prior to the Revolutionary War. They are regularly invoked whenever the government imposes some restriction or potential restriction on civil liberties, privacy, or other personal rights in the interest of national security.

History shows that this is a common occurrence. In his book, All the Laws But One: Civil Liberties in Wartime, late Supreme Court Chief Justice William Rehnquist outlined a series of restrictions on civil liberties, starting with Abraham Lincoln's famous suspension of the writ of habeas corpus and his administration's arrest and detention without trial of more than 13,000 citizens during the Civil War. During World War I, Congress enacted the Espionage and Sedition Acts, which made it illegal to publish any information opposing or resisting the war. More infamously, during World War II, the government interned thousands of U.S. citizens of Japanese ancestry. The Cold War, the Vietnam War, and the war on terrorism have all resulted in similar restrictions, including the controversial USA PATRIOT Act and its successors.

The Law Falls Mute

The argument in favor of such laws is that notwithstanding Franklin's admonition, in a time of war, the government's authority and necessity to wage that war are strengthened, and other considerations may, unavoidably, be weakened. The Romans recognized this principle with the Latin phrase "Inter arma enim silent leges," which means, "In times of war, the law falls mute."

The war on terrorism is different, however. Unlike the Civil War, World War I, World War II, and even the Cold War, the war on terrorism is an undeclared, ongoing battle against often unknown and unknowable opponents who operate without regard to battlefields or fronts. What constitutes "terrorism" is also less clear, at least on the margins. The mass shooting in San Bernadino, Calif., was seen as an act of terrorism because the shooters both had reportedly pledged allegiance to and were influenced by support for the Islamic State group and al-Qaida. Drug trafficking and other activities once associated with organized crime are now often linked to terrorism as a means of generating or laundering money.

This war is also being fought on a remarkably different and complex battlefield that exists in both physical space and in a cyberspace environment that was only a gleam in the Defense Advanced Research Projects Agency's eye at the time of the Vietnam War and Cold War. Digital information-gathering and communication are central to the modern age, and, regretfully, so are terrorism and crime. There is often deep conflict as the critical need for security in the legitimate world of digital information-gathering and communication serves equally to facilitate the illegitimate world of terrorism and crime.

Balancing Security and Investigation

The ongoing battle between the FBI and Apple over accessing locked iPhones is both a microcosm and a symbol of the large and complex battle that is being waged between privacy and security. The backstory of the FBI versus Apple dispute has been widely discussed and debated. An Apple iPhone 5C in the possession of the perpetrator of the San Bernadino shooting had been "locked" to prevent unauthorized access. The FBI could not risk losing the phone's data, so it asked Apple to create a "backdoor" into the phone's OS. Apple refused, saying that a backdoor would require it to develop a new OS for the one phone and could make all iPhones (and iPads) more vulnerable to hacking. …

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