Reasonable Expectations of Privacy

Civil LibertiesSuffice it to say that it has been interesting to witness the different reactions to the recent leaks that the NSA is acting in conjunction with private companies to monitor our private conversations. These reactions have been more than predictable. Besides the obvious game of mirrors where Democrats (including Obama himself) who used to loath Bush and were tearing their hair out over the Patriot Act are now blindly defending the Obama administration’s expansion of the Surveillance State, you also have the mainstream, establishment media in a love affair with government secrecy, their arguments being that:

  • when we weigh the risk of a terrorist attack with our privacy rights, our privacy rights should lose,
  • the journalists who leaked the story (and are not real journalists) don’t know what they are talking about
  • we shouldn’t have any expectation of privacy in our online interactions
  • if we have done nothing wrong then we should have nothing to worry about, and
  • there is no proof that the government has actually bee abusive (ie, no harm, no foul).

It all makes you wonder which side of the fence the David Brooks, David Frum, Tom Friedman, Andrew Sullivan and others like them would have been on back between 1776 and 1791 when the American people were fighting for, amongst other freedoms, the freedom against government intrusion into their homes and personal lives. Their full defense of surveillance and secrecy is tantamount to siding with both King George and Big Government. Why is it that the guys who most hate our values are not the terrorists but the chicken hawks who are willing and eager to sacrifice our values as soon as a buffoon plants a faulty bomb in his underpants.

Now, I know that I repeatedly promise to steer clear from these American political issues and focus more on life in Europe, but I think that as an American living abroad, I am particularly affected by the Surveillance. So here are my two cents:

Reasonable Expectation of Privacy

The Fourth Amendment to the Constitution is very clear:

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 government needs a warrant, and that warrant must be issued upon probably cause, before the government can start snooping around a person’s property and effects. Of course, what constitutes a search and the exceptions to obtaining a warrant have been defined over the past 220 plus years. The general rule established by the Supreme Court in 1967 was that the government was prohibited from engaging in a search without a warrant in those instances where we had a reasonable expectation of privacy.

For example, if I am alone in my home, it is reasonable for me to expect that what I am doing is private. It would be unreasonable for the government to put a video camera and record what I am doing, say, behind closed doors in the bathroom. On the other hand, if I am talking loudly on my cell phone on a crowded elevator, I do not have a reasonable expectation of privacy.

The question that PRISM raises is when do we have a reasonable expectation of privacy when we use the internet and other information technologies? Google thinks that we relinquish almost all expectations of privacy. I disagree. Obviously when we blog, tweet or post content to Facebook, we are in a sense publishing our thoughts openly. It is hard to argue that we have a reasonable expectation of privacy when we knowingly post on forums regardless of whether those are limited to smaller groups of people.

But there is a big difference between having an online life through Facebook or Twitter and merely sending emails directed to just one person. If we didn’t have at least some expectation of privacy, then we wouldn’t password protect our email accounts. Interestingly enough, we have a reasonable expectation of privacy when we hand a physical letter over to a postal worker (ie, the government) to be delivered to its final destination. Wouldn’t an email be analogous? When I send an email to my mother, should I have a reasonable expectation that my email is private and should not be read by the government? There are plenty of alleged cases where members of the armed forces stationed abroad have had their personal emails to their loved ones back home read and ridiculed by the intelligence community. Arguably they may have less of an expectation of privacy by virtue of serving in the military abroad, but that does not mean we do not believe these conversations to be private.

Even though certain polls seem to indicate that many Americans are okay in principle with PRISM, I think that if you were to ask Americans whether they had a reasonable expectation of privacy in their emails, they would say yes. And even if they were to say, no, I still believe that the government needs to be crystal clear about whether they in fact do believe they have the right to read personal emails without a warrant, and they need to give the American people the opportunity to contest that on constitutional grounds. To date, the government refuses to even disclose its position on the matter for national security reasons. Furthermore, it has repeatedly asked the courts to dismiss any related claims on the grounds that any discussion about what it believes it can and cannot do is national security sensitive. If that is not Kafka, I don’t know what is.

Would Brooks, Frum, Friedman, et al, or the Obama administration for that matter consider that there are any areas in lives where we still have a reasonable expectation of privacy? I would like to know where they draw the line.

Some Rights are Better than Others

It’s always interesting to see how in any crisis situation – be it the Boston bombings, the underwear bomber, another mass shooting spree, or the leak that the government is spying on us – that the only one of our Constitutional rights never to be put in question is the Second Amendment right to bear arms (ironically, the least clear of the lot).  Regardless of the fact that the actual risk Americans face at the hands of Muslim terrorists pales in comparison to white people with guns, our political and media class are always more than happy to sacrifice our Fourth and Fifth Amendment Rights. Of course, we should suspend Miranda Rights, they say. How dare we read a terrorist suspect his rights! And if we haven’t done anything wrong, then why not let the government read our emails. The Founding Fathers are rolling in their graves.

But if we really have nothing to worry about, then why not allow the government to access the email accounts of all gun owners? Wouldn’t we be in a better position to prevent another psychopath from shooting up a church, schoolyard, workplace or movie theater if the government could just read his emails? While we’re at it, why not insert cameras into the rooms where gun owners’ store their fire arms in their homes?

Think about it: if we no longer have a reasonable expectation of privacy in our personal emails because of the remote possibility that amongst the billions of emails sent each day there may be one – a mere needle in the hay stack – signaling possible terrorist activity that may cause a few American deaths, then why would we have a reasonable expectation of privacy in our personal emails or even in the place where we keep our fire arms when there is the higher probability that amongst the billions of emails or the hundreds of thousands of households where firearms are kept that we may locate a crazy person intent on killing dozens of innocent Americans?

Big Government

Another big part of this whole PRISM story that is largely ignored is that national security is a great business. An entire intelligence industry of government contractors has grown out of the War on Terror, feeding Big Government. If you thought that the end of the Cold War would have put hundreds of security analysts out of job, think again. There are now hundreds of thousands of contractors and consultants with the highest level of security clearance, making the entire notion of “Top Secret” comical at best. The War on Terror has been the gift that keeps on giving to Big Government. Do the math. Terrorism is terms of numbers of deaths is a minor national security threat, but it’s big bucks for the Defense Industry and the new intelligence contractors. Top Secret America is a business unto itself.

Nothing to Worry About

My favorite argument in favor of broad surveillance – the Google argument – is that if you have done nothing wrong, then you have nothing to worry about. That is not only contrary to the very heart of the Fourth Amendment – with the idea that we should be free from government intrusion – but is hard for people who have been harassed by the government before to swallow. The simple, every day example is stop and frisk. According to my brother who is a public interest lawyer in the Bronx, in his conversations with urban African American teenagers, it is quite common for a teenager to be stopped and frisked by the police, every single day. Yes, every single day. So even if they have never done anything wrong, they are still stopped, frisked and inconvenienced on a daily basis. That is tantamount to living in a Police State, having to pass through police check points that inhibit their free movement.

On the National Security Front, I would like to hear Google’s Eric Schmidt tell the eighty Guantanamo detainees who have spent a decade locked in cages without trial or being charged with any crime whatsoever and who have long been cleared for release (by the Bush administration) yet continue to wallow away that “if you have done nothing wrong, you have nothing to worry about”.

How about telling the U.S. Air Force veteran living in Kuwait who was put on the no fly list, was prohibited from flying home to the U.S. to visit his ailing mother, and denied even an explanation by the government into why he was on the no fly list that “if you’ve done nothing wrong, then you have nothing to worry about”.

The Obama administration claims it has the authority to kill a U.S. citizen, including you or me, without a trial, without any judicial or congressional oversight, and without the person on the kill list ever having the knowledge that he is on the list or the ability to contest that he is on the list. Even the legal memos relating to this authority are kept secret. So I could be killed by the government based on information it has obtained from sources that will never be known to me or the public. So it really wouldn’t matter whether or not I had done something wrong because I would already be dead.

No Harm, No Foul

As Jameel Jafaar explains in response to the claim that there is no knowledge that the government is abusing its power, that

You say you are unaware of a single instance, since 9/11, in which the government used surveillance to target a political opponent, dissenter or critic. But if the government were using surveillance this way, would officials tell us? So much secrecy surrounds the government’s surveillance activities that we simply don’t know how often, or in what ways, the government’s surveillance powers have been abused. This said, we know enough that we ought to be worried. Here is an article about the Department of Homeland Security conducting inappropriate surveillance of protesters associated with Occupy Wall Street. Here is a report of the Justice Department’s inspector general finding that the F.B.I. monitored a political group because of its anti-war views. Here is a story in which a former C.I.A. official says that the agency gathered information about a prominent war critic “in order to discredit him.”

These abuses are real, but if we focus on them exclusively we risk overlooking the deeper implications of pervasive government surveillance. When people think the government is watching them, or that it might be, they become reluctant to exercise democratic freedoms. They may be discouraged from visiting officially disfavored Web sites, joining controversial political groups, attending political rallies or criticizing government policy. This is a cost to the people who don’t exercise their rights, but it’s a cost to our society, too. The chilling effect of surveillance makes our public debates narrower and more inhibited and our democracy less vital. This is the greater threat presented by the kinds of programs that were exposed this past week.

Living Abroad

As mentioned, by virtue of being a U.S. citizen living abroad, I can expect that the government, if not actively tracking my calls and emails home to my family, takes the position that it can. Personally, I haven’t done anything wrong and therefore shouldn’t be bothered by the government taking a healthy curiosity into my private life or be worried that such a curiosity may have negative repercussions.

But it’s not that easy. I was just discussing this very point yesterday with a colleague who is also an American lawyer living and working abroad. We both coincided with the fact that we were not comfortable discussing politics over the phone when we talk to our friends and families back home. Non-Americans always tell me how humiliating it is to go through the passport control when you arrive in the U.S. As an American citizen living abroad (and one married to a non-American), I can tell you that it is never a pleasant experience for us either. That’s one of the main reasons that we try to remain off the political radar. I probably don’t do myself much of a service by blogging or tweeting about U.S. foreign policy, but I especially try to avoid discussing these issues over the phone. It is just not worth it.

And that is part of the problem. Even if we will not suffer any harm from engaging in normal, every day political discussions, the effect of PRISM and other similar surveillance activities is to prevent the normal types of discourse that are healthy for democracies everywhere.

Protecting Citizens Only

One thing I still cannot quite understand is why there should be a difference between whether the U.S. government is spying on and tracking the activities of foreigners or citizens; the argument being that citizens should have greater protections. The reason this doesn’t make sense is that if the same standard were applied to foreign nations, then the logic would follow that it would be perfectly legal for, say, China to access the private communications of American citizens without any transparency. In other words, it would be completely legitimate for a foreign nation to spy on Americans. I don’t think our allies appreciate this standard.

If You’re Not American, Don’t Use Gmail

A few years ago, I attended a speech at the Institute de Empresa Business School in Madrid given by two top Google privacy lawyers. After the Google attorneys explained how Google search and Google Maps made the lives of oppressive governments more difficult, I took the opportunity to ask about FISA and the notion that the U.S. government took the position that it was authorized to intercept international emails without a warrant, and more specifically if the mere act of opening a Gmail account from outside of the U.S. (which by nature would involve routing email traffic through Google servers in the U.S.) was an invitation to allow the U.S. government to read your private communications. The answer I got – unrelated to the question – had to do with the statistics of how many warrants were granted in the U.S. versus Spain to read emails. For one, I wasn’t asking about the granting of warrants, I was talking about warrantless access.

My understanding then and now is that (i) even purely non-American Gmail accounts would still require some movement through Google’s domestic network, hence rendering all foreign Gmail traffic “international” and meaning that the U.S. government may access any Gmail traffic even if it is between two people outside of the U.S.; and (ii) the U.S. government in its surveillance of emails cannot necessarily determine whether the origin or destination of the communication is international and therefore treats all communications as potentially international. Hence, the U.S. government can spy on purely domestic emails between two U.S. citizens. And it can also spy on purely domestic emails between say two Spanish citizens, writing to each other from within Spain as long as they are using Gmail.

Once again, taken in the extreme, if we were to apply the same standard to China, China would not be restrained legally from monitoring the emails between two U.S. citizens communicating within the U.S.

As I asked the Google attorneys, why would a non-U.S. citizen then want to have a Gmail account? I could see a non-U.S. based internet and email service provider that offers a truly private service free from the Imperialists as a great business opportunity. Internet services that offer real privacy protections could be the internet’s version of organic.

If the Government Has Done Nothing Wrong . . .

Finally, there have been many claims that Glenn Greenwald, the Guardian and the Washington Post have no idea what they are talking about. But, I think that is the whole point of the leak. If we as a nation do not understand the what, where, when and why of government surveillance, then we cannot have an open discussion as to whether our rights are being violated. If the government has done nothing wrong, then it has nothing to worry about in disclosing its activities.


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Filed under Essays, Obama 44, We The People

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