Ever since the Guardian broke the story of the NSA spying on Americans,
the issue of privacy has been forced into the spotlight. Before this incident,
the concept seemed to not be of much concern to the average American. We are
now learning that people have very different views of privacy across the
political spectrum. Ever since Edward Snowden leaked information about the NSA’s
PRISM program, news outlets are reporting what the political leaders of our
nation think about this man and the merits of the program. House Speaker John
Boehner has labeled him as a “traitor[1]”,
and Diane Feinstein said the leak was an act of ‘treason’[2].
However, not all of our leaders in Congress agree with this assessment. Representatives
like Rand Paul are trying to combat the NSA with a constitutional challenge[3]
and the ACLU has already filed a lawsuit against the government[4]. There hasn't been much debate about the
definition of privacy and what the 4th amendment looks like in the
digital age, especially when it comes to privacy vs. security.
In order to have a better understanding of privacy we need to return to
the context in which the 4th amendment was penned. From here we can
draw parallels to modern times and come to a consensus. One of the best ways to
get an understanding of the founders’ concept of privacy is to look back at the
laws and treatises written in that day, and the University of Chicago’s The Founders’ Constitution provides us
with that material. According this this
book, one of the documents that influenced the Bill of Rights was the Virginia
Declaration of Rights. Section 10 of the Declaration says,
That
general warrants, whereby any officer or messenger may be commanded to search
suspected places without evidence of a fact committed, or to seize any person
or persons not named, or whose offence is not particularly described and
supported by evidence, are grievous and oppressive, and ought not to be
granted.[5]
This gives us a clear view of what privacy means to those in the state
of Virginia in 1776 when this was written.
Unless there is specific factual evidence, searches and seizures ‘ought
not to be granted’. The state of Vermont
had a section similar to Virginia and it reads,
That
the people have a right to hold themselves, their houses, papers and
possessions, free from search and seizure; and therefore warrants, without
oaths or affirmations first made, affording a sufficient foundation for them…
ought not to be granted.[6]
Again, the commonality between these two state laws
places an emphasis on ‘evidence’ or ‘sufficient foundation’ for any search or
seizure. It is clear that these had an
impact on our current 4th amendment.
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.[7]
The question is, do we still believe this today?
The answer seems to be yes and no. The tricky part is, what does this
look like when the United States is engaged in a “War on Terror”? General
consensus is that we the people must be willing to give up some of our freedom
for the sake of security. The question
is how much freedom we are willing to give up for the sake of ‘security.’ Pew
research released the results of a poll with the question “Should the
government be able to monitor everyone’s email to prevent possible terrorism?”
and 45% of Americans said yes[8].
In essence, this means that almost half of the American public is willing to
let the government snoop around their emails to prevent “possible terrorism”.
The question implies that there is no evidence to back these searches; there is
no ‘probable cause’ as required by the 4th amendment. This is a
major deviation from what Americans believed when the Bill of Rights was
written. Fortunately, the United States wasn't founded as a pure democracy and
there are laws that protect us from the ‘tyranny of the majority.’
Since it is obvious that many Americans do not care about the federal
government obtaining ‘meta-data,’ the issue comes back to legality. Given the
continuing wars and the Patriot Act, it’s hard to draw the line between
security and privacy. Once we started fighting a war tactic (terrorism) we
opened the doors to pursue individuals around the globe and even in our own
country. Before the Patriot Act was passed there wasn't much debate about the
repercussions of passing this legislation. In 2001, when the Patriot Act was
passed, it was easy to see that many wanted this broad power given to the
government because of the state of the nation. There were anthrax attacks, 9/11
had occurred only one month before, and America had rallied behind the President.
However, that threat level is no longer on our minds. And while the threat
level has decreased, the abuse of the law has grown. According to NBC News, the
FBI increased its use of the Patriot Act by 1,000% last year[9],
prompting the author of the Patriot Act to come forward and say that this
administration has taken it too far[10].
The reassuring speeches representatives like Boehner and Feinstein give to us
about ‘checks and balances’ in the system lose their credibility when the FISA
court has only struck down 0.3% of surveillance requests[11]. But the damage has been done. The government
has woven a web of precedent that grant them authority to increase their power
when there is a ‘threat’ of terrorism and the government isn't obligated to
tell the American people how or why they are collecting this information.
So what is the next step? There needs to be a challenge to the NSA’s
PRISM program and their authority to track American citizens. Under the Bush
administration, people like John Yoo were advocating for warrantless
wiretapping of foreign nationals and the communication between Pakistan,
Afghanistan and the United States[12]. This makes sense as long as the people being
tracked are not citizens of the United States and are not protected by the Bill
of Rights. The director of the NSA, Keith Alexander, testified in front of the
Senate defending the program as thwarting terrorist activity in the US[13]. However, it appears evident that more than
just phone records are being accessed and we do not know exactly what the NSA
is obtaining. It is clear that during the time when the 4th
amendment was written, the government required probable cause. By obtaining
information on every American and then claiming to connect the dots on ‘dozens’
of threats, millions of people have had their information obtained and stored
by the NSA for 5 years without reason. The path that Rand Paul and the ACLU are
taking appears to be the best course of action. The baseless seizure of
American records is clearly in violation of the 4th amendment due to
its lack of ‘probable cause.’ We cannot allow the government to view the people
as guilty until proven innocent. We understand the threat of terrorism is real,
but when the government tells us we are always under this threat as long as
terrorists are trying to attack us, we will never get our freedoms back.
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