“I can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.” — Edward Snowden
Have you ever heard someone say, “Why do I care about privacy? I have nothing to hide.” Some even go on to add, “if it stops all of this violence, then I’m actually for a little invasion of my privacy.” Sometimes another inaccurate argument might be presented when discussing online privacy: “Free men love liberty, and criminals crave privacy.”
Perhaps Ben Franklin countered these statements best when he warned “those that would trade freedom for a little temporary security, deserve neither and will soon lose both.” Do you wonder why Ben sounded so indignant?
He knew that if you did not aggressively protect your rights, you would be jeopardizing the rights of others, as well. He was insulted that one would be willing to weaken Liberty, for all, through their careless negligence.
We all bear the costs of increased surveillance in our country, and although it levies all taxpayers, not all costs are financial. It infringes on everyone’s private life, not just those that are willing to allow it. It compromises everyone’s officials and leaders. Their decisions affect everyone in society, not just those that yielded their Liberty. These leaders include those in the political, military and private sectors. Information used to blackmail a corporate leader might have far reaching consequences that affect many of us, not just a few. These consequences could be more serious in the event that a senator’s (or a military general’s) decision was compromised. This unreasonable intrusion into our privacy generally increases our distrust of one another.
Lack of privacy also inhibits the dissemination of sensitive information necessary for “whistle blowers” to bring tyranny into the open, affecting everyone. If a state official sees something wrong or unethical being performed by an institution in which they have insider information, they might anonymously leak this information to the press so that a public discussion can begin to change what is happening. If they know that “leaks” are not anonymous, and their careers, or even their lives, would be jeopardized with reprisals from unscrupulous individuals, these “whistleblowers” might remain silent. In this case, it is not a criminal that “craves” privacy, but someone trying to end corruption. Journalists and other members of a free press understand this concept well and defend their right to protect the privacy of their sources tenaciously. This could affect you!
Privacy has financial value. Consider Congressman Blackburn’s formal remarks: “What happens when you follow the European privacy model and take information out of the information economy? … Revenues fall, innovation stalls and you lose out to innovators who choose to work elsewhere.” We have also seen an unwillingness of foreign corporations to purchase American- made computers and components because they are correctly suspicious that these goods will make them vulnerable to industrial espionage. This hurts our bottom line directly.
Additionally, donors might crave privacy. Often donations are made anonymously for any number of good reasons. Perhaps the person would like to avoid additional solicitations from other individuals or charities once their generosity was made public. Perhaps a donor would prefer his politics remain unknown to the public so that he may continue to do business with those that may have strong opinions opposite of his own. Perhaps the donation might reveal vulnerabilities of the donor in other ways. One example might be if a donor would like to contribute to a cause that is socially sensitive, such as ending prohibition during the twenties. Whatever the reason, donors that might be good people, championing good causes, could also “crave” privacy.
But privacy has another intrinsic value. Billy Graham put it simply when he said,“Once you’ve lost your privacy, you realize you’ve lost an extremely valuable thing.” It might be hard to imagine not having privacy. Think about how you’d feel if you found out that you forgot to zip up your fly while at a party, or as a young teenager, your parents listened in on every phone conversation you had with your friends. Privacy allows us to develop normally and psychologically as human beings. Think about what Marilyn Monroe might have meant when she said, “A career is born in public – talent in privacy.”
In a few sentences, the framers of the Constitution seemed intuitively to understand and cherish our right to avoid unreasonable intrusions into our private, and perhaps even public, lives. Let’s examine the evolution of the uniquely American concept of privacy, unreasonable searches, and the creation of the Fourth Amendment:
In February 1761, a lawyer named James Otis argued unsuccessfully against “Writs of Assistance” in the defense of merchants who had failed to pay duty to the English Crown on smuggled goods. Writs of Assistance were broad-based warrants that allowed for general searches for no one specific and no place in particular. They could be used by custom officials whenever they wanted to search for smuggled or stolen goods and written materials expressing political dissent.
Often, these searches were destructive to the owner’s property on which they were conducted. Often, property not related to the original infraction was seized. Otis offered a passionate plea to the courts: when no standard for issuing warrants existed, the subjects of those searches become the victims of “petty tyrants.” He explained, “[C]an a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proofs of the danger there is in trusting them with ANY? …Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him.”
In 1763 and 1765, two separate cases involving the ransacking of pamphleteers homes and the seizure of property related to sedition charges resulted in the British judge on both cases, Lord Camden, overturning them on the basis that the searches were illegal. (Pamphleteering was the 18th century equivalent of “blogging”!). And on June 10, 1768, John Hancock’s gaff-rigged Sloop, “Liberty,” was seized by the British after a search at sea turned up smuggled wine. John Hancock was at the time one of the wealthiest merchants in Boston and blatantly disregarded paying taxes to the Crown on imported goods. To make matters worse, the Captain and crew of the “Liberty” kidnapped the British customs official that had discovered the boot-legged wine and held him prisoner (in part, because the cheeky official wouldn’t consider taking a bribe!) until they could offload most of their cargo at dock, duty-free. A riot and some fisticuffs later, and the “Liberty” was commandeered in port by the British.
John Adams defended Hancock in five months of legal wrangling which led suddenly and unexpectedly to dropped charges. It would later be Adams that would distill the angst of the period in legal language for the Massachusetts Constitution:
“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”
Congress would edit and narrow the language that would lead to the adoption of this language as the Fourth Amendment within the Constitution:
“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.”
It is interesting that Adams argued that even a commercial merchant vessel was immune to searches “without any probable cause” and that his language in his state Constitution was broader in scope of the protections eventually granted in the US Constitution. Though many authors contributed to the final wording (including James Madison), Adams probably had the most intimate experience with aberrant conditions prior to any law being enacted.
It is also worth noting that it was the illegal search of the homes or vessels that mandated a “not guilty” verdict, even though the defendants, in these cases, were probably guilty of some misdeed. It was clearly established that probable cause was the proper measure of a search or seizure, and any fact discovered afterwards, in the event of a improper search, was null and void.
Could it be then, that the framers saw the necessity, on occasion, for lawbreakers to be protected from unreasonable searches and seizures? Much as the right to bear arms implies that those arms might be used one day to guard against tyranny, maybe the right to be free from unprovoked, and possibly condemning searches might be necessary to protect a public accumulating contraband to resist tyranny. In both cases, an illegal act, or the threat of an illegal act, might be necessary.
Imagine a scenario where an ethical person might be compelled to act illegally in the face of a tyrannical regulation or law. History is replete with examples. Consider what it would mean to harbor an escaped slave in antebellum times; or a Jew during the Nazi occupation of Poland; or to protect a rare library of astronomy books during the Spanish Inquisition, or to sequester guns and grenades for the French Underground during the German occupation of France. These examples — and there are plenty more — were not necessary for the framers; they had had experiences of their own.
So, why do we find the Fourth Amendment applicable to today’s society even with huge technological advances the founders could not have envisioned in their time? It is because it is not a document discussing technology. It is a document discussing ethics and principles. It is discussing ideas. Ethics and principles do not change within the human species very much. What is fair today was fair 2000 years ago and will still be fair in 2000 years to come.
The Fourth Amendment applies to today’s technology because an “unreasonable search” occurs when the government violates a person’s expectation of privacy during a phone call or even an internet connection. Even though a search may be electronic, digital, or some future, yet undiscovered technology, rather than a physical one, it is still a “search” covered by the Fourth Amendment. You should be able to reasonably expect your privacy.
Having left communist Russia, Ayn Rand knew about the expectation of privacy and “petty tyrants.” She said “civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.” So, the next time someone asks you if you are concerned about your Fourth Amendment rights, remember that those rights set you free from other men. One’s answer should be: “Very…”