|
Computers, Privacy & the Constitution
|
|
The Right to Privacy and Government Security-- By AaronRawls - 29 Mar 2025IntroductionAs the melancholy settles upon yet another critical nexus in U.S. history under the Trump administration, there is a much larger colloquy being raised on surveillance against U.S. citizens by federal agencies. This dynamic has been strongly condemned by privacy rights activists who wish to prevent government intrusions on their constitutional rights. Conversely, there is an opposing view that wishes prioritize safety and U.S. national security U.S. to counter the contemporary issues deriving from terrorism and other nefarious actors. This opinion is frequently underscored by the desire to ensure that such tragic terrorist attacks such as the September 11th terrorist attacks against the World Trade Center in New York and the Boston Marathon bombings will never occur again.Who ever said that complete prevention of future antisocial activity was compatible with respect for civil liberties?Considering these factors, there is a glaring need to further analyze the contemporary issues facing the need to maintain civil liberties and the desire to ensure a peaceful and safe society. Another question is raised as to whether there should even be a balance when deciding matters related to intelligence collection authorizations and the constitutional rights of U.S. citizens. Ultimately, the preliminary findings of this paper conclude that the legislative, executive, and judicial branches should do much more to ensure that civil rights and liberties will not be unjustly infringed upon during intelligence collection operations. However, this must also be balanced by the practical realities of maintaining a safe and secure environment for both citizens and noncitizens alike. As stated by President Barak Obama in 2013, “we have to strike the right balance between protecting our security and preserving our freedoms.” The US Constitutional Right to PrivacyBefore diving into the particulars surrounding the historical and modern-day debates of government intelligence collection and civil liberties, it is necessary to review current Intelligence collection laws. In particular, the constitution is one of the most foundational authorities when addressing matters related to civil liberties, which includes the right to privacy.Did you reread this sentence?The right to privacy is established in the 4th Amendment of the U.S. Constitution and mandates that it is a right to be secure against unreasonable searches and seizures. By taking as textual view of this amendment, there is an explicit mention of the right of “persons, houses, papers, and effects,” further underscoring the heavy emphasis on protecting against unwanted government intrusions. But the cases on privacy are not limited to the Fourth Amendment, and we discussed the other aspects of the constitutional setting rather extensively in this course.The 4th Amendment has also been heavily litigated in several canonical cases that have large to both broad and narrow interpretations of the text. The cases of Katz vs. United States and Smith v. Maryland established the requirements for whether a government search should be considered reasonable or unreasonable under the 4th Amendment. These cases established the following two-factored test for determining whether a right of privacy has been invaded: 1. Whether the individual has exhibited an actual subjective expectation of privacy; and 2. Whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable? In other words, this test requires the government to base its searches on Probable Cause and for them to be narrowly tailored to the places, persons, or things being searched. However, the drafting of laws after the 9/11 terrorist attacks has given more power and deference to intelligence agencies, creating a grave concern that the historical adage of “a man’s house is his castle” has now been demolished. Some reference to the literature, as I said when we discussed this draft, would be appropriate, would it not? You made it all up by yourself out of two cases? No one else has ever written anything worth taking into consideration? That's a strange way of constructing the draft. Intelligence Collection Laws After 9/11The attempts by the U.S. government to address security dynamics after 9/11 led to a heavy-handed push by members of Congress swiftly investigate the failures of the intelligence community while passing sweeping legislation to increase government surveillance efforts. The legislative initiatives include but are not limited to the following laws:
These aren't by any stretch actual discussions of the content of the statutes, just tag lines, and ones that do not actually reach the civil liberties issues you say you are disdusssing. The Debate of Civil Liberties and SecurityThere are proponents that seek to establish a safe and secure environment that is free from the threats present in the 21st Century. Further, the need to combat terrorism and other forms of violence have led to increased pressure on government officials and policy makers to be more considerate about safety concerns. On the other end of the spectrum, there are those who want to ensure that civil liberties are never undermined by the prospects of security. Indeed, there are many examples of how the lack of oversight mechanisms have led to major infringements upon constitutional rights. The findings of the 1975 Church Committee is just one of the many examples of how the government has overstepped its authority. The findings of the Church Committee disclosed that American civil rights activists were being unconstitutionally surveilled under ubiquitous programs such as COINTELPRO. This included a number of illegal wires taps and surveillance attempts against the former civil rights leader, further showing how unchallenged government power can undermine the same constitutional protections that the apparatus swore to protect.One report each from two thinktanks and a reference to a Congressional investigation doncudted half a century ago, before there was a functioning Internet is not really adequate sourcing. Perhaps ignoring everything written by the teacher is a demonstration of intellectual independence? Even so, absence of such much as a mention of Snowden, let alone my Snowden Lectures (assigned though they were) is genuinely strange. The Balance Between Security and Civil LibertiesTaking both opinions into consideration, the paper concludes that policy makers must find creative solutions to protect civil liberties while ensuring adequate security measures are established within the United States. As eloquent stated by Aharon Barak, “The protection of every individual’s human rights is a much more formidable duty in times of war and terrorism than in times of peace and security. If we fail in our role in times of war and terrorism, we will be unable to fulfill our role in times of peace and security.”An Israeli judge, writing from a completely different social and constitutional perspective, however Yale-ified, surely deserves at least a little more contextual assessment....Barak’s quote further epitomizes the importance of not completely sacrificing civil liberties for the sake of a perfect national security strategy. During the current times of such unconstitutional government measures, we should reestablish this balance closer to the side of civil liberties and the right to privacy to preserve a free and open society. I had hoped that our conversation about this draft might have stimulated some revisions, but that didn't happen. In a student who was phoning it in, never having attended class, one might have a hypothesis about how such a draft came to be. But you were there. This is the library-less law school failing its students, as I said to you when we spoke. There's no literature, no dialogue among authors, no clarity about the sources and their valences, just "some people say this, some people say that," and some authorless thinktankery. That's not how law school writing ever worked before, and it's not how it should work now. But here, after years of destroying our own infrastructure and reducing our expectations of student performance, is where we have apparently arrived. Please help me believe we don't have to watch this happen to the people we teach. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
