We have never had absolute privacy in this country. Cars, safe deposit boxes, our apartments, our houses, even the contents of our minds—any one of us, in appropriate circumstances, can be compelled to say what we saw. We have never lived with large swaths of our life off limits, where judicial authority is ineffective. That is something we need to talk about. I don’t think the FBI should tell people what to do. I don’t think tech companies should tell people what to do. The American people need to decide.
-James Comey, Director of the FBI
The problem is that Comey is simply wrong: the state has never held absolute power over citizens. The 5th Amendment in the United States guarantees a right to avoid testifying against oneself. Our devices are now so personalized with our communciations, thoughts, banking, business, and life that they are functionally a self-testamonial about our lives.
Moreover, even when some evidence is unavailable – be it because authorities don’t know to look for it, or cannot find it – that doesn’t immediately mean that a case is terminated. Instead, a range of powers as well as alternate charges can be brought to bear. And the price of a democracy is that, sometimes, authorities cannot bring charges against people they suspect but cannot prove may have broken the law. This restraint on state power is a core feature of liberal democratic governance and is a restraint that needs to be maintained so that we can all enjoy our freedoms.