johnlocke apatriotsmanifest.com 11.15.07
Of late we, the people of the United States of America, have seen an unprecedented and unwarranted increase in the level of intrusion, by the federal government, into the private lives of the American citizenry. This intrusion takes the form of electronic surveillance, searches, and no-notice seizure of records. The argument, made by members of this administration, is that broad investigative and surveillance powers are necessary to deter terrorism. The counter-argument, made by opponents to this administration, is that government is precluded from such power by the Constitution, and that the individual right to privacy is protected in federal and state law as well as in the conventions of American society. At the heart of this issue are the nature of privacy, the protections afforded by law and custom, and the need to balance the power of the government, the need to deter terrorism, and the rights of the individual.
An understanding of the nature of privacy, how it is defined and limited, is a necessary first step in the discussion at hand. Privacy is defined as “the quality of being secluded from the presence or view of others.” This definition of privacy is a nebulous and expansive term, and it appears to be insufficiently specific to allow a basis for formulating a determination in this matter. It is, therefore, necessary to distinguish what forms privacy may take. The most common forms of privacy are physical privacy, informational privacy, and decisional privacy.
Physical privacy is loosely defined as a limitation or restriction on the ability of others to perceive a person using the five senses. Informational privacy is the restriction and control of facts and data, which may be unknown to others. Decisional privacy is the exclusion of others from a decision making process. A review of these definitions indicates that the discussion, in question, would be almost entirely encompassed within the bounds of physical and informational privacy.
Having established the nature of the privacy, under discussion, it is now necessary to discuss the nature of the alleged intrusions and violations, of privacy, by the government. These alleged intrusions include searches, physical surveillance, electronic surveillance, and seizure of records. For the purposes of this discussion searches shall include both physical and remote investigations affecting a person’s anatomy, residence, vehicle, place of business, or other area where the individual may be deemed to have some form of proprietary interest. Physical surveillance shall include direct observation of a person, using the senses of the observer. Electronic surveillance shall be defined to include indirect surveillance methods such as cameras, microphones, wire taps, wire traps, wire traces, microphones, frequency scanning, call interception, software, hardware, and ancillary equipment used for the purpose of surveillance of either a person (physically), or data and information about a person not deemed to be in the public domain and readily accessible to the general public. Seizure of records shall be defined as including both voluntary submission of the records (by a third party) or involuntary acquisition of records (by a principal or third party), pertaining to an individual. These records, by definition would be deemed a matter of proprietary interest to the individual and would
include data and information about a person not deemed to be in the public domain and not readily available to the general public.
In order to understand the nature and scope of the issue at hand, we must first come to some form of agreement as to whether an intrusion, infringement, or violation to the “right of privacy” has occurred. As a critical first step, to this building of this common understanding, it is necessary to determine whether such a “right” does (in fact) exist. What is the basis for making a claim to privacy? Is it a matter of law, of mores and traditions, or some other extrinsic factor? What are the limitations to privacy? Does an individual have the same expectations of privacy at all times and in all places?
The “right to privacy” may be said to arise from the concept of self determination. The principle of self determination inherently includes an assertion of ownership of self. Self determination incorporates, within it, the ability to formulate an expression of free will, an ability to act independently of extrinsic factors or the will of others. Thus it may be theorized that the “right to privacy” is contingent upon the ability to limit the control others may exert upon an individual (physically). The issue of privacy is not, however, limited to merely one of physical control. The “right to privacy” is also a matter of societal mores (norms, conventions, and customs) and law.
The University of Nebraska Medical Center posed an cogent observation on the nature of privacy. On the UNMC ethics website it was observed that “just what a person is expected to do in order to respect another's privacy varies with culture. For example, expectations that people will knock on the door before entering certain sorts of areas assumes the existence of both doors and of expectations about the amount of so-called "private space" to which a person is entitled. In some contemporary cultures, parents oversee their children's affairs much more closely than in others. In traditional Chinese families, for example, it is expected that parents will do such things as read the mail addressed to their adolescent children as part of their responsible oversight of their children, whereas in Anglo-American culture such acts would be viewed as intrusions on the adolescent's privacy.
Questions of privacy have become particularly prominent as computers and other technological innovations have made it possible to collect, assemble, and transmit quantities of information in ways that previously were impossible.”
The “right to privacy” is established as a matter of federal law. In the case Griswold Vs. Connecticut the United States Supreme Court held, by majority, that the right to privacy was incorporated, by inference, within the “penumbras” of other constitutional protections. Concurring opinions were written, by other members of the court, which based support of the majority opinion in the ninth amendment to the constitution and the due process clause of the fourteenth amendment. This right is further supported in the case Roe Vs. Wade based, in no small part, on the due process clause of the fourteenth amendment. In addition, the right to privacy is explicitly included in the United Nations Universal Declaration of Human Rights, (UDHR), article twelve which states (in part) “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” It is worth noting, here, that “the United States was instrumental in creating the UDHR, and joined the UN General Assembly in unanimously adopting it.” The supremacy clause, of the Constitution, therefore gives the UDHR force of law under article six which states (in part) “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” The right to privacy may be further construed from the fourth amendment to the Constitution, which states “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.” Although the listing of case law is not exhaustive it may appear, to the lay observer, that a “right to privacy”, is firmly established as a matter of case law, in the United States, (under the principle of stare decisis ), as a matter of “right” included in the right to be secure from unreasonable search and seizures (under article four of the Constitution) and as a matter of treaty law (under article six of the Constitution).
Thus it is possible to conclude that there is a legal and a moral basis for asserting that an individual “right to privacy” does exist in fact.
If it is accepted that a right to privacy exists, as a matter of law and mores, then it also becomes necessary to accept that the right does not apply, equally, to all people at all times and in every possible place. The government may, for example, curtail the right to privacy for prison inmates, members of the armed forces, people detained by the police (as a matter of safety or to preserve evidence), and in other such exigent circumstances as may be judged (by competent authority) to constitute a threat to society as a whole. At issue, then, are the limitations on the government’s ability to abridge the individual right to privacy.
Central to the debate, on governmental power and privacy, are the practices used by the government in the gathering of data, ostensibly for use in the “war on terror.” In the first instance a lawsuit has been filed in which “the central witness in a California lawsuit against AT&T says the government is vacuuming up billions of e-mails and phone calls as they pass through an AT&T switching station in San Francisco. Mark Klein, a retired AT&T technician, helped connect a device in 2003 that he says diverted and copied onto a government supercomputer every call, e-mail, and Internet site access on AT&T lines. The Electronic Frontier Foundation, which filed the class-action suit, claims there are as many as 20 such sites in the U.S.” In reviewing this issue, as laymen, the questions which arise are: Was the request inherently legal? Was the request reasonable? Was a harm incurred?
In answering the question of legality, as laymen, we must ask some simple questions: Does the government have the authority to perform the action in question? Was the requesting authority acting within the course and scope of their duties? Did they follow the applicable laws governing these types of requests? In answering the first question, does the government have the authority to perform this action, we must conclude that the answer is a qualified yes. The government is granted, by law and custom, the authority to carry out the duties necessary to the common defense. If we accept that the act of electronic surveillance and records seizure, in general, fall within the commonly accepted set of investigative tools and practices employed, to deter terrorism, (and we also view the deterrence of terrorism as an act of defense), then the government’s actions should be considered as within the government’s authority to act (in general).
The first question is difficult to answer, completely, as the article did not specify which organizational entity made the records request. If: the agency, in question, is empowered, by law or regulation, to make such a request; the request is made by persons authorized to do so; and the request is made for an official purpose, then we must again conclude that the government is within it’s authority to act. If, however: the agency is not empowered by law or regulation to make such a request; the request is made by persons not authorized to do so; or the request is not made for an official purpose, then the request is outside of the government’s authority and the surveillance and seizure would appear to be illegal per-se.
It is in answering the second question that we arrive at a substantive point of contention. Was the request reasonable? Did the government request only those things that they needed, as a minimum, and in sufficient detail so as to preclude release of unrelated records? An analysis, of the request made to AT&T by the government, does not appear to support a conclusion that the request was reasonable in size and scope. The collection of billions of e-mails and phone calls, based on no criteria other than their presence on the AT&T public telephone switch is not inherently reasonable. There could be no reasonable expectation, by the government, that all or even a substantial majority of these e-mails and calls would yield an investigative lead. More to the point, the law requires a reasonable suspicion that a crime has been or may be committed (probable cause) prior to the issuance of a warrant to search, seize, or perform surveillance. It is highly unlikely that the government could articulate such probable cause for the billions of transactions involved- thus the action itself appears to be a violation of the right to privacy. This action also appears to breach the standard for being an “inherently reasonable search” and I would, therefore, argue that it appears to violate the provisions of the fourth amendment to the Constitution.
A second example, of alleged improper or illegal governmental actions, exists in the “warrant-less wiretap” initiative, as it is espoused by the Bush administration. “In 2002 the President issued an Executive Order authorizing the National Security Agency (NSA) to wiretap phone and email communications involving United States persons within the U.S., without obtaining a warrant or court order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), which prohibits unauthorized electronic surveillance.” In an attempt to justify this action the administration based its defense in two areas: Article two of the US Constitution and the Authorization to Use Military Force. On August 17, 2006 U.S. District Judge Anna Diggs Taylor ruled the NSA spy program unconstitutional, and thus illegal de-jure. Judge Diggs Taylor ruled that “the defendants "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III. She declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III. Her ruling went on to say that "the president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."
A third iteration, of alleged intrusion or illegality, occurred in 2005 and impacted the records of a public library system. “The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.
Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow.”
At issue, in this instance, is the question of whether the search is “reasonable” in nature. Once again one must ask whether the government identified the records required with sufficient specificity and clarity so as to preclude the release of information impacting “innocent” people. Given that the records requested would clearly exceed the requirements of the government (in that they disclose MORE than who used a particular terminal) there is reason to question whether the request was reasonable on its face. If these records, and ONLY these records, would provide the desired information then the unwitting disclosure of other information may be considered incidental to an investigation. Provided that the government performs its due care and diligence in the maintenance, storage, and disposal of this information, then no infringement of an individual’s rights may be said to have occurred. If, however, the government is aware of records which fulfill the same purpose but are more restrictive in nature (as in they don’t disclose other information- such as books borrowed by others) and declines these records in lieu of the more comprehensive documents- the search may be deemed unreasonable and thus constitutes a breach of the fourth amendment.
The question of harm is difficult to determine in this matter. Does harm accrue to individuals if they are not aware of the violation of their rights? How is an individual to know if their information has been compromised when the investigative process inherently inhibits disclosure? How is the average person to know when they are under surveillance? I would argue that the harm is implicit in the act and it is not necessary for each individual to be aware that their individual information has been compromised or disclosed to third parties. The government can not state, as a matter of fact (under law), that there has been no misuse of the information nor can it state (again as a matter of fact) that its actions were inherently reasonable in this matter. I would also argue that it is sufficient, in principle, to demonstrate that the infringement of the right to privacy has occurred as a matter of fact as a basis for construing that harm has occurred.
In closing, freedom is not divisible. One cannot argue that one is only as free as the government allows one to be, and also claim that this is liberty. The framers to the Constitution deliberately crafted a document intended to protect the people from the abuses of the government. The Constitution is quite specific in limiting the ability of the government to spy, snoop, and otherwise investigate the people in the absence of due process. It also limits the government’s actions to those which are inherently reasonable and constitute the minimum necessary to achieve the common defense. The collection of billions of e-mails and phone calls (on the AT&T switch), the warrant-less wiretap program, and the use of national security letters as investigative tools (to monitor library subscriber information), do not appear to meet the criteria for being reasonable or the minimum level of intrusion necessary. More to the point, these searches can not but have an inherently chilling effect upon the exercise of other constitutionally guaranteed rights. The right to privacy, while not absolute, is not subject to the whims of bureaucrats and overly zealous investigators. A government that can, and does, ignore one set of rights will have no compunction about ignoring the rest of them.
381 U.S. 479 (1965)