Tuesday, June 11, 2013

The Fourth Amendment and Electronic Communication


I am among those somewhat conflicted over the issue of NSA data sweeps.  I don’t like the idea of NSA, or any governmental agency, examining my phone and internet records without a warrant, even if they are not looking at content.  And by warrant I don’t mean a secret blanket warrant, but one issued for good cause, specifically naming me, what is to be searched and what is being searched for.  It’s important because government power, even for beneficent purposes, is always coercive, and, therefore, must one must always be cautious about employing it. 

Sifting through records to see whether patterns emerge that point toward threats to public safety and well being has some merit, and I can understand why some kind of blanket warrant might be needed under tightly controlled and supervised circumstances.  The problem is that the combination of power, capability and secrecy attracts J. Edgar Hoover types who go well beyond the fox guarding the henhouse metaphor.  They become the fox who built and stocked the henhouse, controlling all access to it. 

That may sound odd coming from a liberal like me, but then I have always been a conservative liberal, not a liberal liberal, if that makes any sense at all. 

On the other hand, phone and internet records are public commodities traded among public and private enterprises for their own benefit, and have been for decades.  We have few enforceable rights to the privacy of our communications in today’s environment.  Moreover, content is not excluded.  What we write and talk about through electronic media is fodder for marketers worldwide.  Non government organizations may not have the legitimate coercive power of governments, but they can be, and are, intrusive and manipulative to the point of coercion, and we gladly endure it in defense of “free enterprise.”

Tell me what the difference is between information about a shirt bought from Land’s End being shared with the entire world, and records of multiple phone contacts with suspected terrorists being shared with law enforcement agencies.  It’s not a thin line, it’s a fuzzy line.  It all depends on what is understood as unreasonable search and seizure (U.S. Constitution, Amendment 4) and whether the Constitution has authority at all over what private enterprises do with information that has been so widely bought, sold and traded without government oversight.

My Tea Party Second Amendment acquaintances are obsessively paranoid over all of this.  On the one hand, they love the idea of spying on foreigners and those who are unAmerican.  On the other hand, they are pretty sure the government is run by foreigners and unAmerican traitors who want to take away their guns.  They don’t know which way to turn.  If only J. Edgar was back, he could be trusted, and maybe Joe McCarthy too (he was right all along you know).

The problem, as I see it, is that we do not know what unreasonable search and seizure means in an electronic environment where most data is regularly farmed for public and private purposes, and in a political environment where electronic media is the conduit through which crimes are planned and committed on an international scale.  Our current Congress is not capable of an informed debate leading toward resolution, and, with few exceptions, neither are the various news media outlets.

Whatever the solution, I would advise erring on the side of caution and respect for individual privacy.  

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