Privacy and Security is not a zero-sum game. We can have both.

“If you don’t let the government search these things, you let the terrorists win.    If you place privacy above security, we are all put at grave risk.”    This is a common thread justifying government surveillance of phone records, internet activities, and the such.     In the months after 9/11, the American people seemed to buy into this argument.  We gave government vast powers (well actually, a Congress that did not even read the Patriot Act did), with the reassurance of “don’t worry, once things calm down, and normalize, we’‘ll restore the proper balance of civil liberties.”  This simply is not true.   When governmental power is increased, it rarely if ever surrenders it.    There is nothing profound about such a statement, it is really politics 101.  Power expands in a vacuum, and it has a tendency to corrupt.

Thus we are told that privacy and security is a zero-sum game.  You can not have one without hurting the other.  This is not true either.     The genius of the Constitution is that the rights bestowed on us in the Bill of Rights (really, a listing of those things government can not do) are not absolute.    The Fourth Amendment does not prohibit all searches and seizures,  it prohibits unreasonable searches and seizures lacking probable cause and a warrant.   Surveillance is allowed – after there is judicial oversight and regulation.   It is not a zero-sum game.   If government has a legitimate reason to track someone, and can demonstrate the reasons for doing so, with proper oversight, it would be acceptable.   

The revelations of the past week suggest that this system is broken.  Yes, there is a Foreign Intelligence Surveillance Act which is supposed to provide oversight through a “secret” court.  Yet, when government can simply say “give us access to all phone records for all of your customers” this isn’t oversight.  It is what the New York Times aptly called a “dragnet.”   Proper judicial oversight requires probable cause and individualized suspicion.    There is none of that in the phone monitoring searches.   Plus, were it not for a “leak” (thankfully the Obama administration seems to have a problem with such things) we would not KNOW it was going on. 

It is clear that the FISA Court is more akin to a grand jury than an actual court.  In a grand jury, only the prosecution gets to present evidence.   The “target” has no representation, does not even know the proceedings are going on. The evidence is all one-sided, and thus, prosecutors rarely fail to obtain indictments from jurors who only receive one side of the story.    FISA operates under the cloak of “national security.”   When it allows the government to track all phone calls of a major carrier with no specific individualized suspicion, it is one sided.   It is not a court at all.

On the contrary, in a normal court, when an application for a search warrant is presented, the police must demonstrate probable cause – based on articulable facts and inferences from those facts, which when taken in the totality of the circumstances, lead to a level of suspicion which merits authorizing a search.   Moreover, when police get a search warrant to search a home, they show up at the home, and they have to produce the warrant.  It is proper judicial oversight and regulation.   Under FISA, the court order is “top secret,” the government surveillance is done with no knowledge of those whose information is being searched.   That is not oversight.  It is an abuse of power.  It is government violating the very document – the Constitution – it is sworn to uphold.      

We are told to “trust us” – we won’t do anything to hurt you.    Yet, the very fact that government is tracking our phone calls, the very fact that they are scanning our internet activities, and maybe even the files we store on computers is a harm.    The president tells us “don’t worry, we can be trusted.”    As the New York Times (6/6/13, op-ed) states:  “Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.”

The president’s argument is not persuasive.  it is an insult to the American people, and assumes that we should just trust them because they know what is best for us.   And as the Times points out, the Obama administration has lost all credibility on this issue.     The Administration (like the one before it, which equally shared blame for creating the system in the first place) takes advantage of the powers it has been given, and expands them.   It  never retreats.    And on its own, it will not retreat. The only way we will be able to reclaim our rights is if we demand them, and that will require insisting on real oversight; and not allowing Congress to hide behind the same arguments.  We can have privacy and security, but not following the path that has been laid out in the past decade.  The first step must be to repeal the Patriot Act. We need an OccupyNSA movement.  A grassroots effort to demand our rights. 

While Benjamin Franklin never actually said it the way the quote is attributed to him, the meaning remains true.   “He who would trade liberty for some temporary security, deserves neither liberty nor security.”   

Further reading:   President Obama’s Dragnet 

Daniel Solove, Nothing to Hide: The False Tradeoff between Privacy and Security, Yale University Press, 2013.  

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