Privacy and Governmental Overreach

8/19/2019 Privacy and Governmental Overreach

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jRoll No. 1233

Jurisprudence CA III: Assignment

IV Semester

Submitted by: Snjn !d"

Jurisprudentil Issues In"ol"ed in t#e $emnd by t#e %nited Sttes

go"ernment to build bc&door to t#e i'#one: (rec# o) t#e Rig#t to

'ri"cy nd *o"ernmentl +"errec#.

This present case raises two issues of concern first of which is the potential misuse of the

software if it comes in the wrong hands and the second which warrants a deeper concern is

the governmental overreach and the dangerous precedent this might set. In this assignment I

would try to restrict myself to our course curriculum while focussing on limited governance

and the breach of the right to privacy.

To succinctly lay out the facts following the San Bernardino attack on 2nd December 20! by

a couple who were of "akistani origin and later killed by the police in a shootout the #ederal

Bureau of Investigation sought the help of $pple Inc. as they were unable to unlock one of

the mobile phones they recovered which was a model of an i"hone due to its advanced

security features. %ather than asking for legislative action through &ongress the #BI is

proposing an unprecedented use of the $ll 'rits $ct of ()* to +ustify an e,pansion of its

authority. In its argument that this backdoor is for +ust one i"hone the government does not

realise that once the way to bypass the code is revealed the encryption can be defeated by

anyone with that knowledge.

,#e Concept o) Rig#ts: Arguing )or t#e Rig#t to Control o) 'ersonl In)ormtion

This

,#e Concept o) Justice: Arguing )or -imited *o"ernment

The concept of +ustice deals with finding +ust principles of organising the society. There are

many difficulties that are faced when deciding upon a principle as it is not possible to predict



the future or to find a principle that might be universally applicable. This assignment looks at

three such possible alternatives of organising the society-

i. tilitarianism

This theory follows the greatest happiness principle. /eremy Bentham said that we all are

pleasure seeking entities and are controlled by two strong forces of pleasure and pain.

$ccording to him it is completely +ust if we try to ma,imise pleasure or minimise pain but in

conflicting situations where the interests of an individual clash with those of the society the

pleasures of the latter as a whole become important. This is the ma,imum happiness principle

and thus according to this +ustice is when pleasure is ma,imised.

This theory has an egalitarian charm in that it treats all rights as eual and there is no

sub+ectivity. 1ere one cannot impose their morality on another and the state does not choose

on the basis of the activity but rather on the number of the people who derive happiness from

the activity. verybody is counted in the calculation and pleasure of each is eually

important.

This theory is however too simplistic and disregards morality altogether. There is little scope

for practical application as pleasure and pain cannot be measured. It does not account for

situations where the pleasure derived by a person is greater than the pleasure derived byanother in doing some other activity which means that pleasures are ualitatively different

thus making the calculations only superficially eual.

This is the traditional utilitarianism which was however modified to an e,tent by /ames

Stuart 3ill. 1e said that the pleasures can be either physical or intellectual and that although

the physical pleasure are the same for both humans and other animals but humans are further

capable of intellectual pleasures which are superior to physical pleasures.

3ill said that intellectual pleasures are tender and need to be nourished. They need support

and a proper environment. This modified theory thus allows and +ustifies moral guidance by

the state. Intellectual pleasures are identified on the basis of the decided preference shown by

the people. If a person has e,perienced both physical and intellectual pleasures and has to

decide to come back to one and show a decided preference for it then that chosen activity

would be superior to the other.

This theory essentially allows the morality of the society to be imposed on others and thus an

encroachment on their freedoms. 3ill said that when the state bans activities in such cases the



world in general only immensely gains from it. 1e believed that utilitarianism could attain its

end only by the general cultivation of nobleness of character and he was thus concerned with

happiness and pleasure in the long run. The view taken into account need not be of the

ma+ority.

3ill arrived at an idea of individual rights when he said that ma+ority tyranny is bad. 1e also

said that one cannot interfere in the activities of another for their own benefit and the

collective happiness in the long run has to be kept in mind. 1e realises the fact that every

person is in minority at some point of time and thus carves out individual rights in the larger

picture of utilitarianism. 1e does not hold the rights per se as important but only because they

give pleasure in the longer run. In other words liberties are important only because of their

utilitarian value. This however implies that the end +ustifies the means which means thatrights of people may be infringed upon if it results in a greater good in the longer run.

Thus this theory presents a case for governmental overreach and even +ustifies it in name of

the good in the longer run. This however is a precarious position as can be seen from some

practical e,amples.

Take the 3umbai e,tra+udicial killings for instance where to tackle the underworld the

&entral Intelligence nit was set up and given a tacit command to kill the members of the

underworld and on whom weapons were then planted afterwards. Between *** and 2004

almost all of the underworld was wiped out. This was a definite benefit to the society in the

long run by way of e,tra+udicial killings and is thus +ustified in this theory as this was done

for the greater good.

5oing further back in time take the 3ehrangarh e,ample where a person was buried alive

under the foundation of the fort in order to reverse the curse over the city. This too is +ustified

under this theory as here one person is being killed for the collective benefit of the society in

the longer run which brings us to another theory for organising society where the basis of

rights is not utilitarianism but the fact that we have certain rights even in the absence of state.

ii. 6ibertarianism

/ohn 6ocke said that humans do not own their own body but are owned by god. 1umans are

only custodians of their bodies which means that without the consent of god they can neither

harm their bodies nor sell them. 1e said that we have certain inalienable rights such as the

right to life and liberty even in the state of nature. The outcome of mi,ing the labour of a



person and nature is property which is owned by that person and hence he has a greater say in

the case of property because he is the creator of that property but lesser say in matters of life

and liberty.

But these rights and liberties are not absolute as one cannot always en+oy them in the state of

nature because of which there is a need of establishing a state. 'ith the formation of state

comes the concept of a government by consent. %ights should be surrendered to the state in

such a way that there are declared laws meant for the better protection of the inalienable

rights which are given to us by god.

'e give up the e,ecutive power that we had in the state of nature into the hands of the society

to be so far at the disposal of the legislature as the good of the society shall reuire yet it

being only with an intention to better preserve ourselves and our liberty and property for no

rational being can be supposed to change his condition with an intention to be in a worse

position.

1ere the killing of a person with known laws is +ust only when it ensures the safety of others

in future. In the utilitarian theory the rule of law was not reuired for encounter killings but in

this theory the procedure also assumes importance. 7ou cannot take life even with declared

laws unless there is a threat to life. Thus the 3umbai e,tra+udicial killings would not be

supported by this theory. Similarly the 3ehrangarh e,ample will also not be supported as the

right to life is inalienable.

This theory thus seems to overcome the problems in the utilitarian theory and in fact this

theory inspired the unanimous declaration of independence of the thirteen united states of

$merica on 4th /uly ((8 albeit with a slight modification in that the pursuit of happiness

was more important than the property rights. If the instituted government is unable to secure

the inalienable rights then it is the right of the people to alter or abolish it altogether and

institute a new government in its place and to organise its powers in such a manner as to

ensure their happiness and safety.

In fact the origins of democracy can be traced back to this theory. 'hile entering into a

contract the people did not give up their inalienable rights but only their ability to affect

others i.e. they will not make laws or +udge others or e,ecute those laws themselves. This led

to the birth of parliament and +udiciary and an e,ecutive. There should be no transgression of

functions and the proper procedure of making laws should be followed.



%obert 9o:ick was also a liberalist and he went a step further in saying that there should only

be a minimal state. 1e states the problem of +ustice as one of liberty and that in order to

recognise intrinsic capabilities liberties need to be protected. The underlying principle here

however is that human beings own themselves. This theory challenges paternalistic and moral

legislations.

In utilitarianism the individuals were not respected as it was based on ma,imum happiness.

The state made decisions based on the number of people deriving pleasure from an activity.

So for instance if more people derive happiness from dancing than sports then the state would

promote dancing and the individuals with potential in sports will be discriminated against.

The minimal state where liberties are given ma,imal effect allows individuals to realise their

full potential. 9o:ick was against the state undertaking activities for benefiting one at the cost

of another. 1e termed progressive ta,ation by the state as stealing and slavery as according to

him in effect the state was forcing you to work for the benefit of others by way of collecting

ta,es. Ta,ation also causes a discrimination between citi:ens as the pleasures are different as

in that they do not cost the same.

$lthough he does allow for some ta,ation but it is only for those bare minimum institutions

which are absolutely necessary in the society such as armed forces and +udiciary as there is a

need for a civil society because the two principles of +ustice in acuisition of which there

must be repeated application cannot e,ist in state of nature. This is the concept of minimal

state and there is least interference in private sphere.

"aternalistic legislations such as wearing seat belt which do not allow you to live life the way

you want to or collecting ta,es for the purpose of building schools and roads is not +ustified

and for these 9o:ick simply assumes that people who reuire these institutions and

infrastructures will themselves come forward for building them. $part from the presumption

e,plicitly stated by 9o:ick there is an underlying presumption that each person morally

deserves everything that they have. This is an e,treme form of libertarianism. The minimal

state is the most e,tensive state that can be +ustified and any state that is more e,tensive will

violate rights of people.

This however is not an ideal principle for organising society as it allows ineualities to play

complete role and in this way those who are left behind are left behind forever. This theory

does not provide for any welfare activities whatsoever. Such a state cannot be considered +ust.



/ohn %awls gave a very comprehensive idea in which he sought to strike a balance between

classic utilitarianism and libertarianism. 1e started with the assumption that as far as nature is

concerned it is neither +ust nor un+ust. /ustness is not of the nature but of the legal institutions.

It is the duty of the institutions to create a balance by neutralising the disabilities and the

abilities. 1e spoke of the veil of ignorance which assumes importance when choosing a

principle for forming a civil society. The only things that are to be remembered are that you

are intelligent and that you are selfish. 'ith intellect comes the ability to reason and with

selfishness the ability to protect your interest.

;nce the principle is chosen and the veil of ignorance is lifted you see a spectrum of social

and economic conditions and you do not know where you will be born. This ensures that no

one is advantaged or disadvantaged in the choice of principle by the outcome of naturalchance or the contingency of social circumstance. "rinciples of +ustice would be argued from

the original position behind the veil of ignorance and the agreement would therefore be fair.

9ow people may consider different alternatives behind the veil of ignorance. tilitarianism

will not be accepted as people would not know whether they will be in the ma+ority or the

minority when the veil is lifted. 9obody would want to give up his liberty when the society as

a whole is benefitted. 9or will libertarianism be accepted as this does not take into account

natural ineualities and allows them to play an e,tensive role. /ustice is not about eualising

everyone nor about letting the nature take its course. It is how we deal with natural

ineualities. %awls said that instead of +ust providing an eual starting point the differences

need to be neutralised as much as possible at the finish line.

1e gave two principles which have a le,ical priority. The first principle provides for eual

political freedom and the second permits social and economic ineualities. The second part

further states that the ineuality should be such that it works to the ma,imum advantage for

the least advantaged. Thus this theory corrects a drawback in the theory given by 9o:ick

wherein the gap between the rich and poor would keep increasing and the situation of haves

and have nots will emerge as in %awls theory money may be taken from the top and added to

the bottom. The gap will thus not reach its elastic limit.

The right to privacy fits into the first principle given by /ohn %awls. It is the right to privacy

that forms the common foundation of the freedom of conscience outlined in the #irst

$mendment and the right to be secure in one<s person outlined in the #ourth $mendment and

the right to refuse self=incrimination outlined in the #ifth $mendment of the Bill of %ights of

http://civilliberty.about.com/od/firstamendment/tp/First-Amendment.htm



http://civilliberty.about.com/od/lawenforcementterrorism/p/4th_amendment.htm









the nited States despite the fact that the word privacy itself appears nowhere in the .S.

&onstitution.

In this theory everyone has the freedom to pursue their own perception of a good life and

have an opportunity to organise their life in the manner they deem fit. Therefore rights are

superior to the good.

iii. &ommunitarianism

http://usgovinfo.about.com/od/usconstitution/a/constindex.htm




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