Should privacy prevail, or does national security trump all?
The interpretation of privacy which Mr Brandeis conveyed in his iconic article, in the context of the modern digital age, does not encapsulate the broader importance of privacy. Yet, while people may come to appreciate these broader importances regarding privacy, they should not so easily disregard the importance of national security and public safety. There is little doubt that the bad guys will be using information technology available to them as well as the law-abiding users. Thus, state governments need to be able to operate in cyberspace to protect against criminal or terrorist threats, while respecting the civil liberties.
But overall, this debate is not about which side wins. It is not exactly plausible to say that privacy should prevail over surveillance or vice-versa. Governments, lawyers, technologists, businesses, human rights experts, politicians and others should be working together to find some workable middle-ground. The merits of both national security and individual privacy should both be recognised, as both are very important.
Expanding this collaborative attitude to a more international level, too, could also be helpful. The differences between Europe and America on the issue of privacy shows why more international cooperation may be necessary. More international frameworks would enable greater clarity since technologies like the internet operate globally, but flexibility may also need to be considered to allow individual countries to make their own judgements too. China would certainly agree, for their own reasons.
So far, no definitive line has been drawn, which is in part due to regulators passing legislation that conflicts with its peers in other jurisdictions or even countries. But at the same time, different courts with different rulings constantly move that faint line. Thus, the privacy-surveillance debate grudgingly continues.
Protecting data from malicious actors is difficult, even for the government