Do We Really Have a 'Right' to Digital Privacy?

FILE - In this April 30, 2015, file photo, Apple CEO Tim Cook responds to a question during a news conference at IBM Watson h
FILE - In this April 30, 2015, file photo, Apple CEO Tim Cook responds to a question during a news conference at IBM Watson headquarters, in New York. Apple has confirmed that it’s expecting an uncharacteristic decline in sales in the spring of 2016, amid signs of global economic weakness and overall slowing demand for new smartphones. So anticipation is building around Apple’s next iPhones, as investors and tech enthusiasts speculate over what might get the iconic Silicon Valley company back on the path to growth. (AP Photo/Richard Drew, File)

Apple's decision to challenge a federal court order to help the FBI "hack" into a shooting suspect's iPhone 5C is drawing into focus a battle which has been brewing for the past several years.

The way this debate has been shaped thus far is, as follows: which do we value more, privacy or security?

But this argument is overly simplistic, and it also overlooks a key question. Do we actually have a right to digital privacy in the first place?

Personally, I think we should, but that does not mean that we actually do.

The "right to privacy" is a bedrock concept in U.S. society and a guiding principle in our legal system. But if you look for it in the U.S. Constitution or the Bill of Rights, you won't find it.

That's because privacy rights aren't as clear-cut as many Americans generally think they are.

Even in the most privileged and private areas of our lives -- our homes, our cars, our bodies -- we do not enjoy an unlimited level of freedom from government intrusion. Everyone is susceptible to government invasion of privacy when it is warranted.

Consider also how much of our sensitive personal information has no guarantee of privacy at all. None of us can make our voter registration, home ownership records, tax records, liens or court records totally private, unless under exceptional circumstances. Our household garbage is also publicly accessible when you put the trash can out by the road. Even our personal health records are not as private as many think they are.

Our right to privacy is based largely upon the 4th Amendment, as well as legal precedent, the latter of which is susceptible to change with the times. However, the 4th Amendment has very clear limitations on how we may enjoy this privacy:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The reality is that, as Americans, our "right to privacy" has always been conditional upon the needs of government -- it is the right to privacy until a judge issues a warrant.

Think about it this way: Just 15 years ago, everyone still used landline phones. Did those customers have any expectation of "total" privacy? Of course not. U.S. courts could issue wiretap orders when law enforcement provided enough evidence to justify the intrusion, and everybody knew that.

Therefore, when Apple and other companies in Silicon Valley claim that their customers are entitled to total and "warrant-proof" privacy when using their devices or services, they are not simply defending an old right that everyone should already have and which is only now being challenged by an overreaching government.

Instead, they are proposing something entirely new -- a greater level of freedom that has never been available before and was not even physically possible a few years ago.

The introduction of widely available, commercial-grade encryption with fail-safe data wiping protections is a dramatic technological change that tips the balance of power between our right to privacy and the government's authority to search.

This calls into question key fundamentals in our legal system, disrupting over 200 years of legal precedence. For the first time, since the Bill of Rights was ratified, individuals now have a technological ability to block the government's attempt to conduct warranted searches.

This is an entirely new status for individual rights, and therefore it will take the court system time to catch up.

That is why the Apple case is so important.

In 2015, the U.S. District Court for the Eastern District of Pennsylvania held (in the case of Securities and Exchange Commission v. Bonan Huang, et al.) that suspects do not have to hand over their device passwords because such an order violates their 5th Amendment right against self-incrimination.

However, that right only protects us from self-incrimination. It doesn't mean the government lacks the authority to seek access to the device through other means -- such as hacking the phone itself, or compelling a company like Apple to hack the phone for them.

Apple's decision to challenge the US federal court system by refusing to unlock an encrypted iPhone will establish a precedent, one way or the other, as to the exact power of the government to hold companies' responsible for providing individuals with the tools to deny government searches.

How this case plays out will determine whether or not individuals really do have the right to "total" privacy, instead of the conditional right to privacy we enjoy today. But even if the government loses this case, it does not mean the fight is over.

The government has many other tools at its disposal which it can use to undermine privacy tools like encryption. And if the FBI loses its legal battle with Apple, we're likely to see them put to greater use. In particular, the government could become more aggressive at hacking suspects in an effort to bypass encryption and other security tools. Techniques like infecting suspects' devices and networks with spyware, "sinkholing" private servers, conducting "man-in-the-middle" attacks and other hacking methods would likely be used much more broadly than they are today.

Those of us who support the goal of user privacy applaud Apple's position, but from a legal standpoint the fate of government-proof encryption is anything but certain. Americans' right to privacy has always been premised on the idea that the government can break that privacy if it needs to. We will need to write new laws and establish better legal precedents in order to create a better privacy framework that protects us all.