Wednesday, February 24, 2016

113. Apple, Privacy, and the State (2)

In the previous paragraph, we said Apple's stand on the right to privacy is motivated by its promise of privacy to its customers. By approaching the issue this way, Apple is doomed, legally and morally, so to speak. For all intents and purposes a private contractual obligation is subject to compelling state interests and this has been carved out in the jurisprudence on the US Constitution and probably in the Constitutions of other countries as well. It's the same idea that underlies the prohibition on trading of illicit goods, such as drugs and other contraband. The freedom to contract is limited by what the State permits as legitimate contracts. Thus, by anchoring its objections to the order to decrypt on a contractual obligation, Apple is headed to defeat. Even if we do the test of the categorical imperative on the clash of values between state security and inviolability of private contracts, there is no contest that state interest would prevail for it can be argued that  the right of the state to protect itself against illegal contracts, especialy those which jeopardizes the state's existence, is fundamental. Without the state, there would be no room for rights, as there would be no social order. 

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