Interest Convergence and the Role of Citizens as Defenders of Privacy

Steven I. Friedland

Résumé

[extract] In February of 2016, the United States Government asked a federal court to order Apple, Inc. to create software that would enable the government to bypass a security feature on the cell phone of one of Syed Farook, one of the killers who went on a shooting rampage in San Bernardino, California, in December of 2015.

Apple versus the United States government, including agencies, such as the FBI, the NSA, and the Attorney General, offers unlikely adversaries. Until Apple, Inc., began encrypting the software in its cell phones, government access to phone transmissions was relatively easy to obtain. But the adoption of “technological architectures that inhibit the government’s ability to obtain access to communications, even in circumstances that satisfy the Fourth Amendment’s warrant requirements,” created this stand-off, and the Government’s particular fear of “going dark,” where the Government would have no information about communications, has exacerbated it. 

Perhaps more importantly, until several years ago, there were few incentives by private companies to stand on the side of privacy protection. Companies routinely acquired and aggregated user information. Companies like Google, Axiom, AT&T, Verizon, Facebook and others would come by user information naturally. That information was valuable. 

Until recently, there was no incentive to protect or maximize privacy. Now, private companies have an incentive to protect privacy. Whether the incentive is pecuniary, with privacy now a brand, or moral or political, many of the larger companies are aligning with Apple in its fight against the government. 

This paper suggests the alignment may be explained in large part to interest convergence. The late Professor Derrick Bell advanced this theory as an explanation for societal change in segregation after WWII, helping to explain Brown v. Board of Education as a shift favoring the majority Whites as well as the minority African-Americans. 

This paper further argues that interest convergence can be utilized to promote privacy for the average citizen, while still allowing the government to fight crime effectively. The means creating settled expectations about how companies will assist governments in crime interdiction, labeling – like food ingredients – what companies do with the information they receive and how they approach personal privacy. Interest convergence will lead to gradations and distinctive types of privacy. Gradations can include limited disclosures of information, and archetypes can include informational, locational and structural privacy. Above all, because the advancing technologies will keep advancing, the government will have to work with companies or by itself to adapt or new technological architectures. Citizens will rely more and more on education and favorable alignments with companies. Reliance on the Fourth Amendment, unless the ‘third-party rule’ is significantly adapted to the 21st century, will continue to offer little support.

 

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