Data privacy: no answer but the train is moving

Yesterday, a judge ordered Apple to help the FBI decrypt the San Bernadino shooter’s iPhone 5C. Read more HERE. This is an interesting development because we now have a material case where a tech company is being ordered to access encrypted data on a mobile device.

Should tech companies be forced to crack a cell phone open (or email account, or cloud storage, etc) by the government? If yes, under which conditions is this acceptable? If not, then how can law enforcement provide safety in our digital era? These hard-to-answer questions have been around for some time, without consensus from either policymakers or the IT sector. The problem is, the train is moving already and decisions are already being made without a clear-cut legal decision-making framework. Without such a framework, judges will have no option but to rely on current laws (which might be outdated or completely impossible to comply with, due to technical limitations), or on general principles of law, which might be too abstract and outdated to be relevant.

Either we produce such a framework (which seems today like an insurmountable challenge), or the courts are going to indirectly build it ad-hoc, as a collection of case resolutions build up a domain jurisprudence that future judges will use to aid in their decision-making. By the looks of it, the latter will start to happen out of necessity.

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