The Fight Over Privacy and Secrecy in Government Investigations

The debate over privacy has intensified since the battle between Apple and the Justice Department emerged over unlocking the iPhone of one of the San Bernardino shooters. Add to that the question of whether it is appropriate for the government to ask a court to prohibit a company from revealing that it is seeking customer information, and the intertwined issues of privacy and secrecy will force Congress to finally deal with the world of digital information.

The challenge will be striking the right balance between the government’s need to obtain information for law enforcement — a significant priority these days — with the desire to keep at least some personal information private, a growing concern as more sensitive data is stored online. One front in the battle over privacy and secrecy has been the government’s power to obtain email and other electronic communications. The Fourth Amendment prohibits unreasonable searches of homes and papers, but the courts have been reluctant to extend that protection to off-site storage of electronic information, something far removed from the 18th century Bill of Rights.