What is a 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.

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?

This post was written by Erik Hare and originally published on Barataria. Follow Erik on Twitter: @wabbitoid. 

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Comments (1)

  1. Submitted by James Hamilton on 06/10/2013 - 12:52 pm.

    It’s too early

    to make a call on whether Edward Snowden’s actions were justified or, if a criminal act, whether a presidential pardon is warranted.

    The Patriot Act was enacted in a rush to judgment. Let’s not repeat that mistake in assessing its impementation.

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