What You Should Think About Privacy

November 10, 2007

“The personal life of every individual is based on secrecy, and perhaps it is partly for that reason that civilized man is so nervously anxious that personal privacy should be respected.”

–Anton Chekhov

What goes on behind the scenes in government is almost always much uglier than the official facade crafted by political leaders. This is especially true in times of crisis or violent conflict. That is all the more reason to avoid letting our own leaders exploit and amplify the terror sowed by terrorists as officials here set about pursuing any agenda that would expand the powers of government. Seldom has the disparity between a party line and a leader’s actions been as dramatic as we have seen with the Presidency of George W. Bush. Seldom has such a vast gulf been inspired by reaction to an enemy with such limited capabilities as well.

By far the most dangerous thing about Al Qaeda and related organizations is that they command the loyalty of people who are willing to die for the cause yet not so debilitated by their insanity as to be unable to follow through on a complex coordinated plan. Yet in the end that is the worst of the threat. Terrorists do not have an air force or a navy nor even an army that could go toe to toe with a mere 1% of our own armed forces. Only an assortment of people willing to train hard then die in acts of spectacular destruction gives our enemies real power.

Yet substantially the American way of life has changed as a response to this threat. For the most part those ways are not well-publicized. Ideally our nation would have reacted by promoting awareness of realities on the ground in the Middle East, implementing truly useful precautions at airports and seaports, and taking action to undermine the hostility coming from the “death to America” crowd. Instead it seems that our government has promoted fictions about the Middle East, pursued the placebo effect more than real countermeasures at points of vulnerability, and taken action to partially validate the criticisms of anti-American clerical firebrands.

Though much less prominent than the war in Iraq, part of this administration’s blundering involves propping up the notion that America’s dedication to liberty is more window dressing than a core value. We accept much higher mortality rates due to car travel, toxic emissions, workplace safety, et al. than terrorism could plausibly cause without compromising our way of life. Yet this source of death is exploited as justification for the widespread erosion of America’s traditional “right to privacy.”

It is true that the Constitution does not speak directly to the matter of privacy. It is a legal right constructed from interpretations of that document, with particular focus on the 4th Amendment. That language forbids “unreasonable” government exercise of powers to search for and confiscate evidence. Important legal doctrines follow from this, including the idea that enforcers must act based on “probable cause” and that intrusive searches that are not a spontaneous response to exigent circumstances must be warranted by judicial approval.

In 1978 the Foreign Intelligence Surveillance Act (FISA) established a secret process that would enable counterespionage investigators to obtain judicial approval for their searches without compromising legitimately covert aspects of their operations. In 2001 the Patriot Act modified this process so that it might also be used by counterterrorism investigators. Unfortunately, under Presidential guidance, organizations like the NSA cast an extremely wide net. Rather than focusing precious investigative and analytical human resources on the most promising leads, everyone from Quaker pacifists to harmless schoolteachers was swept up in the search.

President Bush has often referred to this scattershot approach as a “vital tool” in efforts to deal with terrorist threats. Yet the executive and legislative shenanigans involved in dealing with the legal ramifications of this pose serious problems. FISA courts cannot hope to keep up with thousands upon thousands of investigations spawned by causes that are so far from probable. Even if political pressure caused those judges to behave like a rubber stamps, the sheer volume of bogus cases is overwhelming. Thus the matter of unwarranted wiretapping made the news, and eventually the Congressional docket as well.

This all feeds back into what foreign critics of the United States have been saying about our hypocrisy. Amidst the echoes of a litany of accurate statements about the expansion of the American police state (among other abuses of power,) it becomes easier for potential radicals to be duped into believing the worst of our system and even our people. After all, the authoritarian bent of the Bush-Cheney team was no secret in 2004, yet most of our citizens casting votes that November actually endorsed the incumbents. If we seek to live in a world where hate for America is not widespread, we would do well to condemn, rather than endorse, acts of outright villainy.

The expansion of federal police powers poses other problems as well. Some people take comfort in the mental refuge, “well, they’re only using these powers against terrorists.” The presumption of innocence is not something to be dispensed with lightly. It is a crucial part of the foundation of any legal system in a free society. Technically, they’re only using these powers against suspected terrorists. That one word makes a world of difference. Just as all it took to become a Salem witch was an accusation of witchcraft, even if it was uttered under extreme duress, similar accusations contribute to the ever-expanding list of suspected terrorists.

Then there is the impact on actual investigatory efforts. Even the most diligent G-man can only chase down so many false leads before his zeal for the hunt gives way to frustration or even cynicism. Rather than keeping our counterterrorism personnel focused on pursuing credible threats to national security, the existing approach turns them into blunt instruments. The expectation of disappointment has become the norm, not just among FBI agents, but throughout the web of agencies and military units tasked with hunting down suspected terrorists.

Personally, I believe that it is important to maintain a high standard of personal privacy because that standard is an invaluable comfort (if also something of an illusion) to almost all adult Americans. Even if that comfort is regarded as an expendable luxury, it is also much more than that. It is a vital constraint that minimizes government victimization of innocent people while serving to focus the efforts of the state on suspects that might reasonably be involved with terrorist organizations.

A hammer is a vital tool for building houses, but it tends to work best when it is directed only at nails. Executive orders and legislative proposals emergent from the White House at present take their “vital tool” and use it to bash haphazardly at all manner of targets. In the end, this produces a much weaker structure than if the tool were used with some sort of reasonable control and precision. If the common goal shared by our entire population is to reduce the level of danger posed by terrorist activity, the last thing our policies should do is validate a portion of the radicals’ narrative while spreading counterterrorism resources so broadly as to violate both our proudest traditions and basic common sense.