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Debating the Constitution: Technology and Privacy

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Live Transcript
  • Who Gets to Decide About Data Security?

    Catherine Crump and John Yoo discuss the issue of who has the authority to determine the norms regarding security of personal data.

  • Vulnerability of a Back Door Into Phone Data

    Michael Chertoff and Stewart Baker address the case of the government asking Apple to exploit a back door into the contents of an iPhone and its security ramifications.

  • Should Government Have a Key to Encrypted Data?

    Debaters Stewart Baker, Catherine Crump, and Michael Chertoff discuss how backdoor access to phone data would affect encrypted apps and data.

  • Jeffrey Rosen Intro

    Jeffrey Rosen, President and CEO of the National Constitution Center, introduces the topic with Host John Donvan.

  • Do companies have an obligation to comply with shadow brokers?

    Clip: Debaters Michael Chertoff and Stewart Baker debate the effects of the global ransomware attack Wannacry.

Debate Details

Do you have a secret that no one else knows?  What about Apple, Google, Facebook, Verizon, or Uber?  Are you sure they don’t know your secret?  Digital data – emails, text messages, phone records, location records, web searches – contain traces of almost every secret.  They also contain traces of almost every crime.  Tech companies may promise to protect our data from prying eyes.  But should that promise yield to law enforcement and national security?

The Motion: Tech Companies Should Be Required To Help Law Enforcement Execute Search Warrants To Access Customer Data

The Debaters

For the motion

Stewart Baker

Attorney & Fmr. Assistant Secretary for Policy, Department of Homeland Security

Stewart Baker is a partner in the law firm of Steptoe and Johnson in Washington, D.C. His law practice covers cybersecurity, data protection, homeland... Read More

John Yoo

Law Professor, Berkeley & Fmr. Attorney, Justice Department

John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute... Read More

Against the motion

Michael Chertoff

Executive Chairman, The Chertoff Group & Fmr. Secretary of Homeland Security

Michael Chertoff is the executive chairman and co-founder of The Chertoff Group, a global advisory firm that provides business strategy, risk management... Read More

Catherine Crump

Catherine Crump

Acting Dir., Samuelson Law, Technology and Public Policy Clinic & Prof., Berkeley Law

Catherine Crump is an assistant clinical professor of law at Berkeley Law School and acting director of the Samuelson Law, Technology and Public Policy... Read More

Where Do You Stand?

For The Motion
  • There is a perception that government has the ability to sweep up all of our digital information—but meaningful details gleaned from metadata is limited, and not all data is backed up to the cloud.  Access to devices yields information that cannot be obtained otherwise.
  • The 4th Amendment authorizes searches when law enforcement is granted search warrants approved by a judge.  With ever-evolving technology, law enforcement is simply seeking the communications it is already authorized to intercept, and end-to-end encryption would subvert this constitutional provision.
  • Encryption is the “equivalent of a closet that can’t be opened, a safe that can’t be cracked,” and there are consequences for law enforcement and national security.  It hampers our ability to prosecute criminals, exonerate the innocent, and prevent future attacks.
  • The All Writs Act grants the courts “the power to issue orders to compel people to do things within the limits of the law.”   A government request for consumer data is often within these limits, including in the high profile Apple case.
Against The Motion
  • We need both privacy and security, but in this “Golden Age of Surveillance,” where nearly all of our communications and movements are tracked by some piece of technology, we need to do more to protect consumers’ privacy.
  • The government is relying on an overbroad interpretation of the All Writs Act that is in violation of the 4th Amendment.  Requiring companies to comply with demands to hand over data and build backdoors today will set up a dangerous precedent.
  • Law enforcement’s demands for access to customer data on devices like the Amazon Echo, or iPhone, are in violation of the 1st Amendment and the right to free expression.
  • Our greatest security threats will come from hackers and rogue nations that use cyberattacks and economic espionage to hurt us. In the end, creating “back doors” and compromising encryption only makes us more vulnerable.
  • There are many ways for bad actors to hide their actions from government.  The use of encrypted apps would render an unlocked phone useless.


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