From: <djg2120@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Sun, 05 Mar 2006 04:23:56 -0500

NSA Surveillance: Why Should We Care

NSA Surveillance: Why Should We Care

Geoffrey R. Stone. Sat Mar 4, 2:49 PM ET.
Huffington Post, Available at: http://tinyurl.com/zqh5e

The Fourth Amendment guarantees the "right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches." Why did the Framers care so much about this
"right" that they thought to put it into the Constitution? What was
it about "searches" that generated their concern? Most obviously, a
search of your house or person is intensely disruptive and
humiliating. To have officers of the government ransack your home,
rummage through your desk, and empty your handbag is surely
unpleasant. Moreover, such a search invades your personal property
in an elemental way. "Who are you to storm into my home in this
way?!" Understandably, then, the Framers declared such searches by
government officials constitutionally permissible only if they were
"reasonable."

With the advent of electronic bugging and wiretapping, courts found
themselves in a quandary. Such methods of surveillance are
undertaken in secret, so they are neither hassling nor humiliating.
And because they can be implementing without entering onto your
property, they don't implicate your property rights. Thus, for some
forty years the Supreme Court held that such methods of surveillance
did not constitute a "search" within the meaning of the Fourth
Amendment. Unlike more traditional searches, the government could
therefore employ electronic surveillance without complying with
probable cause and warrant requirements of the Fourth Amendment.

It wasn't until1967 that the Supreme Court held that the Fourth
Amendment should be understood as protecting "the people" not only
against disruption, humiliation, and physical invasion of their
property, but also against intrusions into their privacy. This was
a huge leap, and although it may seem obvious today, it was neither
inevitable nor uncontested. The proponents of this broader
understanding of the Fourth Amendment argued, in effect, that it
was a mistake to construe the Fourth Amendment as concerned only
with hassle, humiliation, and property. Those characteristics were
all present traditional eighteenth-century searches, but so too was
invasion of privacy. After all, they observed, searching a person's
home or office invades his privacy as much as his property.

The critical step, though, was not the observation that traditional
searches invade privacy, but that something could be a "search"
even if it was not disruptive, humiliating, or invasive of private
property. In this new understanding, the invasion of privacy was
itself sufficient to trigger the Fourth Amendment. Thus, under this
view, a simple wiretap, in which a government official
surreptitiously listens to a telephone call by splicing into the
telephone company's line, would now be considered a "search," and
would henceforth be constitutionally permissible only if it was
authorized in advance by a search warrant issued by an independent
judicial officer who had found that there was probable cause to
believe the wiretap would turn up evidence of crime - the same
constitutional requirements that had traditionally governed
searches of a person's home or office.

The current debate over NSA spying has caused some people to wonder,
"What's the big deal about electronic surveillance, anyway?" As I've
suggested above, this is not at all a crazy question. If the
government surreptitiously listens to your phone calls or reads
your emails, you're not hassled, you're not humiliated, and there's
no interference with your property. If you haven't done anything
wrong and have nothing to hide, why should you care if the
government looks over your shoulder? Perhaps the Court was wrong to
extend the Fourth Amendment to electronic surveillance.

The response, of course, is that we value our privacy. But why? Even
if a government official (or a computer) learns who you're dating or
what movie you saw last week, the NSA has no interest in such
mundane matters. Such stuff is all just miscellaneous garbage the
government has to wade through in order to find what it's looking
for - the terrorists. What it's searching for is not backyard
gossip, but the evildoers in our midst. So, even if all the other
stuff gets heard, read, and recorded, why should you care? It's not
enough to say, "it invades my privacy." You have to explain why that
matters.

So, here are three possible answers for your consideration. If
they're not persuasive, then perhaps you should stop fretting about
the NSA and, indeed, about electronic surveillance generally. First,
perhaps privacy matters because it's important for you to be able to
lead your everyday life without the sense that the government is
constantly peering over your shoulder and preserving for posterity
your every word and deed. This is a point about the ordinariness of
everyday life. Maybe merely being watched, and knowing we're being
watched, somehow undermines and inhibits our sense of freedom.
Maybe part of being free means knowing you're not being watched.

But why would you care about being watched if you're not a criminal
and the only thing the watchers care about is whether you are? If
you're engaging in criminal acts, then you have no right to hide
that behavior, and if you're not engaging in criminal acts, then
you have nothing to fear from the surveillance. Maybe it's just a
myth that knowing you're being watched impairs your sense of
freedom. If you don't do or say anything the watchers care about,
maybe you'll just forget they're even there.

This brings me to my second argument. With good reason, we shouldn't
trust the government to care only about criminal acts. Once the
government can gather all sorts of other information about you (for
example, who your friends are, what books you read, what petitions
you've signed, who you sleep with), it then has the capacity to use
that information against you in all sorts of ways that have nothing
to do with catching terrorists. Certainly, we've seen this
throughout history. Information is power, and power can (and
usually will) be abused. Suppose you have to consider that every
act, every phone call, every email is permanently preserved in
government computers and thus accessible even many years from now
to those officials who will decide whether to hire you for a
government job, oppose you for elective office, admit you or your
child to a public university, or audit your taxes. Might this have
an effect on your conduct and conversations?

To get a sense of this phenomenon, you need only recall what
happened to people who in the 1930s joined organizations that were
then perfectly lawful but that twenty years later became known as
"Communist-front" organizations. The lesson of that experience
produced the stifling conformity of the '50s as individuals became
afraid to anything out of the ordinary. And, of course, it is
political freedom that is most likely to get caught in this net.

Third, perhaps this sort of privacy matters because in a
self-governing society we must vigilantly reinforce and preserve
the sense of independence and autonomy of the individual. For a
self-governing society to function, the citizen must feel that he
is the governor, nor the subject. Perhaps it is difficult to feel
like the governor when your government has the power to watch your
every move. Perhaps limiting the government in this way is
essential the well-being of democracy itself. Certainly, life in
the former Soviet Union, with its pervasive government
surveillance, crushed the life out of "the people." If we do that
to ourselves, we will be worse than the terrorists.
_______
Daniel Grimm
djg2120@columbia.edu

-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list