Home » Nooze » Reasonable Expectation of Privacy?

Reasonable Expectation of Privacy?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
– The Fourth Amendment to the US Constitution

The documents were carefully selected for their ability to illustrate the problem without being sensational or personal.  The exit strategy led to Hong Kong, with a long tradition of free speech but under the control of the US’ one serious non-friend, China.  The leak was given to the Guardian, a non-US publication with a history of defending speech and privacy.  All of this is the work of a methodical mind turning himself over completely to what he believes is simply the right thing to do.

Edward Snowden is a hero, and a very smart one at that.  A petition has already started for a Presidential pardon, and I hope you will sign it.

NSA whisteblower

Edward Snowden, Hero

The leak of NSA procedures and documents was done simply to start the discussion of what is proper for security today.  It wasn’t the lack of privacy that bothered Snowden as much as the inability to talk about what was being done and what it resulted in.  “I don’t want to live in a society that does these sort of things.”

You can follow the links to his interview and the additional information diligently assembled by the Guardian, and I hope you will.  As heroic as it was for him to turn his life over to what he believed was right, this is not about Snowden.  This is about who we all are as a people, and what defines us.

There is a lot more to be said in this public discussion, and it starts with the parade of officials defending the actions of the NSA on weekend gab shows.  This is a bipartisan problem, with staunch defenders ranging from Sen Diane Feinstein (D-CA) to Sen Lindsey Graham (R-SC).  What was done was authorized by Congress under the Patriot Act, passed in 2001 and renewed in 2006 and 2011.

That act authorized the gathering of information on suspected terrorists, but in practice it has become much more.  What was revealed is that the NSA sought and received a warrant to gather all information from Verizon, among many cell phone carriers, on all calls that were placed – including the phone, location, and so on.  This is apparently entered into a database that is available to NSA employees – most of whom are contractors from smaller firms, as Snowden was.

The implications are vast.  The Fourth Amendment only protects you against searches that violate your reasonable expectation of privacy. A reasonable expectation of privacy exists if 1) you actually expect privacy, and 2) your expectation is one that society as a whole would think is legitimate.  While the NSA was not collecting actual phone calls, they were, in effect, collecting people’s contact lists.  Do you have a “reasonable expectation of privacy” for your contact list?  I believe so.

This data was collected in the name of national security.  Once it is all in one place, consider how it might be used.  Snowden verified that he could get details on “famous people” (unnamed) to see that it was possible from his desk.  A foreign power that wants to know what, say, the Senate Intelligence Committee is up to would do well to have one of these NSA contractors on its payroll to monitor things.  National Security is actually compromised simply by the existence of such a database – something that certainly never occurred to its architects.

Our allies are also alarmed.  “The U.S. government must provide clarity regarding these monstrous allegations of total monitoring of various telecommunications and Internet services,” said Peter Schaar, German data protection and freedom of information commissioner.

This also makes the debate over the “Cyber Intelligence Sharing and Protection Act” or CISPA much more interesting.  It appears that all that CISPA would do is to remove the need for a warrant for this kind of information, as if the blanket warrants were that much of a hindrance in the first place.  Perhaps CISPA died in the Senate simply because they knew it was not necessary – and didn’t want the public to become unduly alarmed … which should be read as “informed”.

The response on the ‘net has been anger towards Verizon for going along with this program, but they are far from alone.  All companies with data like this complied and apparently never challenged it in court.  Think about this for a while – no one complained until a random person felt it was simply wrong and leaked it.

Once again, it’s not the gathering of this data that bothered Snowden – it was that the existence of it was a secret.  We were not allowed to know what the NSA knew.  Without disclosure, how can we even begin to fight for any kind of “privacy”?  All these details were kept secret for more than a decade until one man had enough.

We now know what they know, and we must have a public discussion about what our government can prudently collect.  I would say that this far over-strips reasonable boundaries for moral, constitutional, and practical reasons.  You may disagree.  But we can talk about it now and understand just where the line is.  Let’s all do that – and I hope we can establish a line that respects the Fourth Amendment quite a lot more than the Patriot Act does now.

Your thoughts?

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20 thoughts on “Reasonable Expectation of Privacy?

  1. You make very good points & I’m sure there are more to be made. But I saw this as a violation of the right to free association in the 1st amendment. I looked it up and its not in the constitution directly but there is the the “right of the people peaceably to assemble”. If you know that the government knows everyone you call isn’t that infringing on your right to free association with them? And what does that mean if its not in the Constitution directly? I am curious about your thoughts.
    But this really pisses me off no end and I can’t believe they are doing this! We spend how much money spying on people here for what?
    Edward Snowden is a hero! I can’t imagine how brave he is and what he did is really the most patriotic thing I have seen in my life.
    I am rambling but I am mad and trying to be calm like you about it & make good arguments.

    • Good call on free association – that is another very powerful argument. A lot of our rights are not in the Constitution directly, but have been interpreted by courts over many years. The Right to Privacy is one of them – and it comes from the Fourth Amendment.
      I agree that he is a patriot – he was willing to give up a comfortable life to fight for our most cherished values.

  2. OK, I appreciate this and agree. But how do you say this now when you were so against pursuing the Obama scandals before?

    • That’s easy. Going after Obama as a policy was wrong, and Benghazi played itself out long ago. There may be something in the IRS scandal, and I admitted that the AP scandal was very important – for the reasons outlined here.
      The Obama Administration probably did NOT break any laws at all – and that is the problem. The Patriot Act gave insanely broad power to his administration just like the last one, and that is very wrong. Going after junk like Benghazi just makes it much harder to go after the real scandals – it’s crying “wolf!”
      This one is a very big deal. And everyone is to blame. It’s different than those other things that were being invented – and they were a pointless distraction from big deals like this.

  3. Where is the word “privacy” in the 4th Amendment? I see security, but not privacy. That said, what this administration has done is unconscionable.

    • Exactly. We don’t have an implicit “right to privacy”, but one has been interpreted by courts as an obvious conclusion from the Fourth Amendment. A different court might not find it so obvious.
      Right now, such a “right” is being challenged rather seriously.

      • The right to privacy is pretty obvious in begin “secure in your effects” but we need to have this spelled out much more plainly. The Founding Fathers didn’t anticipate things like this at all, how could they? Europe is way ahead of us in guaranteeing privacy because they wrote their human rights charter more recently (a few years ago?). We need an amendment to put a stop to this once and for all and declare a real right to privacy that courts can’t interpret away.

  4. I am very much inclined to hold Obama responsible. There have been broad and deep police-state tendencies throughout his administration–harassment of whistleblowers, continuing torture of prisoners (the present force-feeding, for example), widespread spying on everybody, the drone assassination programs…. Broad failures of the sense of restraint presidents need, and a disregard for the rule of law. Claiming that this stuff is technically “legal”–because the country is off its bearings and the Congress has become a joke–cuts no ice with me. I suppose there are some parallels to Woodrow Wilson and A. Mitchell Palmer. Wilson had a reputation as a liberal/academic type, but he ran an administration characterized by overwhelming racism and abuse of power to harass and imprison political opponents. Obama may be doing more damage than Bush.

    • Several points are very important here, and I think I agree with you on all of them.
      One is that Obama has to be responsible for this, simply because he is the one in charge. The real problem is a defense/NSA/Security establishment that is simply out of control and bent on expanding itself, not just perpetuating. That existed before Obama, but he has not done anything to reign it in as he promised. It appears it is indeed getting worse instead. We have to hold him accountable for that. I cannot understand why he would support this machine, but he seems if anything to be afraid of it – even captive by it. We can’t have that. Someone has to be in charge, and if Obama can’t do it for whatever reason we have to find someone else. This may be my big issue in 2016, especially if the economy keeps improving slowly.
      Secondly, that this stuff is technically “legal” is not a cause to relax, but quite the opposite. I can’t believe that we have authorized such broad surveillance. It has to stop, but being “legal” makes that much harder.
      Lastly, the court review of this has been minimal at best because no one is challenging it – due in part to the gag orders that accompany all the data gathering. That was what bothered Snowden the most, and he’s right. Disclosure is the best guarantee of our rights, and without it we have no chance at all. My biggest fear is that the Supreme Court would say this is OK and that there is no “Right to privacy”. That upsets everything from Roe v Wade to a lot of basic checks on the police that we have come to rely on to defend our rights.
      What I think matters most is the mainstream press having this discussion. I hope that keeps up for a long time. I doubt people will be comfortable with this stuff once they know about it, and they will demand change.

  5. I agree that you are being way too soft on Obama but I will agree that the problem is much bigger than him. We all expected better from him on this at least and we are not getting it.
    Your point that this threatens national security just by existing is a good one. There should never be a database of every activity by Americans period. That can only be abused eventually. I wonder how Lindsey Graham would feel if someone got all his phone records out of it and showed him where he has been for the last month.
    What does it take to put a stop to this? We can talk all we want but there has to be action. This can’t be allowed to continue.

    • I don’t know exactly what it takes to put a stop to this. It has too many friends in Congress to end suddenly. We have to make a lot of noise, maybe march on Washington in an angry mob way bigger than anything they have ever seen before.

  6. I hold Obama 100% accountable for this. He has the power to put a stop to it and instead he is defending it. “Trust your government or we have a problem” he said – well BO, we have a problem, deal with it.

  7. We need to remember that Obama was elected on the basis of his rhetoric; he had very little experience in the US Senate and probably little power base. His performance in the Illinois legislature was very bad–I read he voted “present” dozens of times when he saw no personal advantage in taking a position. His specialty seems to be raising expectations with carefully calibrated rhetoric, which he feels little need to live up to. So if Obama turns out to be an empty-suit president, a tool of the “military-industrial complex,” the telecoms, Monsanto…. there’s no objective reason to be surprised.

    I’m just rambling now, but seems to me there have been presidents who provided psychological aid and comfort to the people–FDR, Eisenhower, Kennedy. (Clinton?) (This is an entirely separate matter from the soundness of their policies.) Then there are another kind. Bush, evil little cracker, sucked hope out of us and fed meanness in. Obama, in his own way, is also sucking out hope and feeding in, at the least, cynicism. People may not analyze the gap between his rhetoric and his actions, but on some level they feel it and it takes its toll….

    • I suppose you are right. I long ago realized that Obama was not with me on the one issue I cared about – a “New Deal” that would restructure the economy. I have assumed he was at least OK on the other stuff that was way down my list. Apparently, that wasn’t true at all.
      It’s been a rather shallow administration full of half-measures and a lot of “muddle through”. That the Intelligence-Security-Complex rolled right through that really isn’t a surprise, no. I just hoped there was better in there somewhere – and trusted his appointees more than him.
      So what do we all do about it? That’s the real question. The way Feinstein talks I can see that even if the Dems take things over in 2014 or 2016 there is no guarantee that we won’t just have more and more of the same.

  8. Pingback: Privacy, Shmrivacy | THE TRIAL WARRIOR BLOG

  9. The penetration of US politics by right-wing/corporate interests is bipartisan. (I’m taking a look at corporate influence on the Democratic Governors’ Assoc., now meeting.) I spent a little time this spring around the Minnesota Legislature, and it seemed very clear that neither Dayton nor the legislative leadership was interested in more than minor course corrections from the path set by the Repubs. The remaining genuinely progressive DFL types are getting older and are settled in and don’t seem to fight too hard. Dayton seemed almost orgasmic over a big, stupid, giveaway to Mayo, while actually cutting funding for human services. Not much objection from anybody, that I could see. The only articles congratulating the Leg. that I’ve seen have been from members and presumably written by their staff flacks.

    So what is the answer? We desperately need the “new deal” you mention, but where is the political suction for it? Wish I knew…..

    • Your story on the Legislature is a bit sickening, but I think you hit on the real problem. Democrats are claiming a majority for the next generation, but we’re not transferring power to that generation adequately at all. The old guard really has to start moving on quickly if we’re going to keep up the enthusiasm that surprised all the “experts” in 2012. Young people are engaged and are voting in big numbers, as are traditional minorities. The various Hispanic groups are proving to be pretty good citizens lately and are very interested in claiming their share of power. If we let them down we will miss out on a big opportunity.
      Having said it that way, big, systemic overhauls HAVE to be in the works – either because this new generation has achieved its share or at least to keep them engaged. The tired old left just isn’t doing the job. The US Senate and the inability to get past cloture is emblematic of the left all the way down, and that’s chilling to me.
      Privacy may be the thing that breaks open the party, at least I hope it is. If we succeed in pushing this one aside I think we may lose a LOT of young people forever. That would be unbelievably stupid. To think we might lose a golden opportunity over this makes me sick.

  10. Ya know, I hate to say it but I have a hard time getting worked up about this. Look, you don’t have “privacy” vs. “no privacy”, What you have are concentric circles of privacy, starting with your own thoughts and bodily sensations, and working out until you are in a completely public domain. The question isn’t whether or not something is “private”, the question is what realm of privacy does a given piece of information inhabit.

    I used to work in the medical field, I worked with “private” patient information all the time. That information can very very personal, but it’s not completely private, a lot of people actually have legitimate access to those records. With the advent of electronic medical records access has been expanded and keeping that information in it’s correct silo has become a huge problem. Even so, medical records themselves have layers of interest as it were. For the most part they’re boring as toast, do you really care if someone knows your blood type, or what your potassium level is? On the other hand, do you want potential employers finding out about your heart murmur or your diabetes? At any rate, you have no idea nor can you, who all has access to your medical records and who’s looking at them. Everyone from med-students to treatment compliance auditors could be looking at your records right this moment, and that’s actually not a problem. Your records may be under review because there’s a complaint about your doc for instance, or something a technician or a RN did. The health department may review patient records for a variety of reasons. The issue isn’t so much who’s looking, the issue is whether or not that information is being kept in within the appropriate sphere of privacy. One thing it is for the medical board to investigate a complaint about your Psychiatrist, another it is for Nixon’s henchmen to make copies so they can slander you for exposing the Pentagon Papers.

    Your phone records are nowhere near as “private” as your medical records. There are no HIPAA regulations that your phone company must conform to. It’s always been much easier to subpoena phone records than medical records, similar to lawyer client communications.

    I don’t actually care if the NSA has a my contact list, Verizon has it, Qwest has it, Whatever, I wouldn’t want it to be public, this is private enough for me. I can’t see what anyone’s going to with that list and I guarantee you if you looked at if every week or month all you would is a serious case of cabin fever because you go stir crazy.

    Now if someone wants to listen to my actual calls, or read my e-mails, that’s a problem, but that’s not happening. You say it “could” happen, sure but it always could’ve happened. The FISA court has existed since the mid 70s, law enforcement just needs to explain to a judge why they want to listen to your phone calls.

    Look, if we had stories about guys being picked up and disappearing because this program’s identified a plumber in Tupelo as a terrorist I’d say we have reason to be concerned, but again, that’s not what’s being reported here.

    I also have some doubts about some of Snowden’s claims, we cannot actually verify all of these claims. For instance he claims to have had all kinds of access to actual content of phone calls… if he’d wanted. How can we verify that?

    At any rate, I’ve always assumed this kind of monitoring was taking place my only concerns stem from my skepticism regarding data mining, I don’t think these boys and their algorithms are all they’re they’re cracked up to be.

    If they ARE listening to my phone calls, they are wasting a lot of time and money. My concern is that they are misdirecting huge resources, there must be literally billions of communications a day, I don’t believe they can sort through that and find patterns like they claim. Patterns may emerge, but they’ll be data artifacts, not real leads. Furthermore, I’m guessing terrorists also assume that all this is going on, and use countermeasures or precautions, all your going to get is low hanging fruit. The Boston bombing tells us that this is all very very very hit and miss. Look at all the info they had on these guys and they still didn’t connect the dots. Even when they found photo they couldn’t connect them to a guy the FBI had actually interviewed and the Russians had identified as a radical.

    What I don’t know is whether or not having this info in an existing NSA data base actually increases efficiency as apposed to grabbing specific records on identified targets as needed. More than likely that data is sitting in the data base wasting storage space.

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