privacy and domestic surveillance

Macon, GA: As I wrote recently, I think the biggest question raised by the warrantless surveillance of US citizens is whether the president knowingly authorized criminal acts under the Foreign Intelligence Surveillance Act (FISA). I don’t know for sure that the acts he authorized were illegal; Orin Kerr says “probably.” If they were, it is very disturbing. A criminal law should be a trip-wire that stops powerful people from doing what they want–or even what they think is best. Otherwise, there is no rule of law.

However, a second question is also interesting and important: Is the FISA a good law or not? Should the Act be changed so that the executive branch can conduct certain kinds of domestic surveillance without warrants?

It seems increasingly likely that the administration wanted to scoop up huge quantities of data in order to look for patterns. Perhaps the main goal was not to identify individuals for prosecution or for any other hostile action. Instead, the government may have wanted to draw statistical conclusions from masses of individual data, much as Amazon and Google learn about consumer tastes by aggregating their information about all our searches and purchases. So, for example, the government might be interested in the percentage of foreign calls placed to Afghanistan that are conducted in Arabic. They might want to know how many of those calls mention Osama bin Laden. They would hope to include calls originating from the USA in their statistics. Ultimately, this information might help to identify a terrorist who fit an emerging statistical profile. But it might also be useful for planning a propaganda campaign or a military strategy.

I suspect that the administration did not ask Congress to amend the FISA to permit domestic searches–nor did officials seek retroactive warrants from the FISA Court after they obtained data on US citizens–because the Constitution forbids the vacuuming up of citizens’ data without their consent. The Fourth Amendment says:

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.

No searches or seizures without probable cause–but what probable cause exists when the government harvests masses of statistical data from private phone calls and emails?

Still, the Supreme Court might be persuaded to change its interpretation of the Fourth Amendment. It could say that international phone calls are not “papers or effects.” Or it could decide that security threats are so important as to compel some limitations on the Fourth Amendment. After all, “the Constitution is not a suicide pact“; the Bill of Rights cannot be allowed to cause our destruction.

Thus the question is not whether warrantless searches violate Supreme Court precedents, but whether the Court ought to allow them under certain circumstances.

On one hand, we might say that a person’s privacy rights are not compromised if the government scoops up vast quantities of data from huge numbers of people and uses the results for statistical research. Only once the government narrows its interest to an individual can there be any direct negative consequences from a search. Only at that point should a warrant be necessary. If the government wants to count the number of times that “Osama bin Laden” appears in my emails, I shouldn’t complain. No human being will actually read my mail or even know my name unless something about me triggers suspicion. Then a human being must decide whether to monitor me and should seek a warrant to do so. If my information is only used to develop a profile of “normal” behavior so that terrorists will stand out as abnormal, then I have no grounds to complain.

On the other hand, there are arguments for privacy that count against warrantless domestic surveillance. In a 2003 paper for the Journal of Accounting & Public Policy, I listed 10 reasons why we reasonably care about our own privacy. Some of these reasons apply only (or mainly) to commercial situations, when companies want to collect data about our private behavior for marketing purposes. Below I list the eight reasons that are most relevant to the NSA wiretaps.

1. Limiting the power of the state. A government that can collect information about its own citizens and aggregate it in powerful databases without probable cause will be a very powerful government indeed–a kind of panopticon.

2. Freedom: The main concern here is a “chilling effect.” If the government can collect masses of data about our private communications, then we may act cautiously in order to avoid scrutiny, even though we are not guilty of anything. For example, someone might avoid saying “Osama bin Laden” on the telephone, because that could trigger an actual search.

3. Rights of Association: We have both legal and moral rights to associate in voluntary groups. Part of what it means to “associate” is to share information only within the organizations that one joins. Freedom of association may be chilled if the state collects data about our group memberships and combines it with information about our ethnicity, religion, etc. For example, a Moslem might choose not to join a politically radical organization if he knew that the state could find out, because he wouldn’t want to contribute to the belief that Moslems tend to be radicals. But he has a right to join any legal association he wants.

4. Property Rights: Perhaps information about me belongs to me, just as anyone’s body is his or her property. If this is true, then the state may not collect information from me without my permission (or without probable cause). However, I do not have property rights to all information about me. For example, many people saw me go to the supermarket yesterday and have a right to know what their eyes showed them. So two questions arise with relevance to the NSA. First, are little scraps of private information (such as the destinations of my phone calls) my property? And second, if the NSA puts lots of separate facts about me into a database to create an overall portrait of me, does that violate my property rights?

5. Fair warning: As a general matter, the state is not supposed to interfere in people’s private lives without at least letting them know. Normally, a search requires a warrant that the person who is searched can contest. The NSA’s wiretaps, however, would be undetectable.

6. Personality Development: Perhaps we need opportunities for private reflection and experimentation if we are to develop complex personalities. We must be able to try out attitudes and values in private so that we can reject them later, without developing a permanent record in someone’s secret files. Also, a complex person may act differently in public and private, but this is impossible if there is no private zone. For instance, a teenager should be able to say outrageous things about George W. Bush on the telephone without having to think that his conversation is being monitored.

7. Avoidance of Discrimination: Powerful people sometimes choose to act on the basis of morally irrelevant information. For instance, employers or the state may discriminate on the basis of sexual preference, religious belief, or disability. Laws against such discrimination are difficult to enforce. Therefore, perhaps it is better to prevent powerful people from obtaining prejudicial information in the first place by protecting privacy. This general argument applies to the NSA. If someone is a Moslem, the state has no right to know it, because governments have the power to discriminate on the basis of religion. Furthermore, we may not want the government to develop statistical theories that incline them to be suspicious of particular kinds of people, because discrimination may follow.

8. Happiness: Although there are other moral values besides happiness (consider justice, fairness, compassion, and freedom), we generally think that it is right to make people as happy as possible, at least all else being equal. Furthermore, human beings usually seem happier when they have a zone of privacy, a chance for solitude. Many of us would feel some discomfort if we knew that the NSA was reading our emails, and that is an argument against warrantless surveillance (although it might be outweighed by arguments in favor of security).