The Founding Fathers’ Enduring Principles -- Balancing Privacy and Cybersecurity
James Madison is known as the Father of the Constitution of the United States because of his important drafting role. He also did the legwork to get it ratified, including by contributing to the Federalist Papers. The Federalist Papers are a collection of 85 articles and essays written in 1787 and 1788 by Alexander Hamilton, John Jay, and James Madison with the primary goal of encouraging the ratification of the Constitution.
The U.S. Constitution was ultimately ratified on June 21, 1788, and came into force in 1789. It created the framework for the U.S. government as it exists today. Madison became the head of the U.S. government, as the fourth President of the United States, from 1809 to 1817.
A significant issue in the formation of a new government under the Constitution was the separation of powers. Madison’s work on this topic was much influenced by European (i.e., primarily French) principles of political economy. The philosophy of Baron de Montesquieu, a French lawyer, who believed that “government should be set up so that no man need be afraid of another,” is particularly permeating through Madison’s writings.
On February 6, 1788, Madison* published an essay with the title “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” The paper is knowns as Federalist No. 51. Madison, in line with the philosophy of Montesquieu, captured the essence of the necessity of checks and balances as follows:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
For obvious reasons, Madison did not particularly have in mind in 1788 the difficult task of balancing an individual’s right of privacy with the security needs of governments to collect electronic information in bulk. Yet, this year, Madison’s words find themselves in cybersecurity cases brought before the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).
On July 19, 2016, Advocate General Saugmandsgaard ?e of the ECJ issued an Opinion in Tele2 Sverige AB (C-203/15) and Watson and Others (C-698/15) validating the general data retention obligations for electronic communications providers under British and Swedish law. He did so at the request of British and Swedish courts in light of the April 8, 2014, judgment of the ECJ in Digital Rights Ireland (C-293/12) invalidating the Data Retention Directive 2006/24/EC. The invalidated directive required providers of publicly available communications services to retain certain data. The ECJ ruled that the retention obligations went beyond what was strictly necessary and violated the Charter of Fundamental Rights of the EU. AG Saugmandsgaard’s Opinion is a detailed analysis recognizing the importance of the right to privacy while at the same time recognizing the benefits of bulk collections of information “to fight serious crime” provided that certain safeguards are in place. To underscore the difficulty of the analysis, he begins his Opinion by quoting Madison’s words above.
On September 29, 2016, in another battle over bulk collection of information, a group of privacy watch dogs filed an extensive 115-page brief, Applicants’ Reply to Observations of the Government of the United Kingdom, in 10 Human Rights Organizations v. The United Kingdom, ECHR App. No. 24960/15. Madison’s words above are again quoted to capture the essential principles to govern the ongoing cybersecurity policy and legal struggle to balance safety and security with the right to privacy.
Little did Madison expect that his writings would be one day used as principles to settle UK law.
Montesquieu must be disappointed that the Europeans are looking to the Americans for these principles.
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* or was it Hamilton? (this is a topic for a different day)