Essay On Ruling Of A Supreme Court Justice: Argument For Privacy

As a Supreme Court Justice, it is possible to see two opposing viewpoints emerge in the privacy debate. Should the government collect information from private citizens in the name of national security? The first viewpoint is "privacy and speech are values of great importance" and people typically embrace these values. Scott McNeal, CEO of Sun Microsystems, summarizes the alternative view: "You already have zero privacy. Get over it." Regarding privacy, the issue should not be whether or not we have privacy, but persuading people to care about their privacy issues. Every day, millions of people post their private information on social media. Contemporary life is, in large part, designed to collect personal information regarding people's everyday lives. However, such warrantless searches, and in essence, seizures of our daily digital postings, violate what we hold most dear -- our Constitutional rights, namely our fourth amendment rights that protect citizens from warrantless invasions of our privacy.
People like Steve Jackson, however, understand the threat to privacy. What happens when a government institution seizes private email messages? The Federal Bureau of Investigation and Secret Service should not have seized Jackson's private communication in order to pursue a case that they eventually decided to drop. Some may contend that the search and seizure were justified because, even though Steve Jackson was innocent, the information found on his computer could help law enforcement prevent other criminal activity from taking place. Through this lens, the prevention of potential future criminal activity justified the search and seizure. This kind of utilitarian thinking presupposes that the life of one man, Steve Jackson, is not as important as the lives of the many. This viewpoint allows the privacy of Jackson to be stripped. The Secret Service thought a warrant justified the violation of his privacy. These kinds of arguments are powerful because, even though people prize their privacy, they seem to prize their security even more. Granted, those who support the Secret Service's seizure of Jackson's documents make a good case that his book, GURPS Cyberpunk, was a recipe for computer hacking, but the legal decision found otherwise. However, the government's vested interest in national security outweighed Jackson's First Amendment right to individual free speech. What law enforcement does in the name of national security needs to be questioned. It needs to be put to the same rigor that both protects privacy, and ensures national security.
As a judge on the US Supreme Court, the issue of privacy versus national security is a major concern. In the case of Klayman v. Obama, we can see how the efforts of the National Security Agency (NSA) are constantly being criticized for its breach of privacy on ordinary citizens. What is the argument? The argument continues to be that national security is more important than privacy. The Klayman case is an example of government having unbridled access to the private exchanges of its citizens. The case should be argued in favor of Klayman. First, even though the NSA exists to protect the lives of citizens, it does not warrant the mass search of millions of phone calls. Technology makes it easier to snoop on others, and the utilitarian argument is convenient. Perhaps, Klayman's breach of privacy could have saved the lives of millions because even though Klayman's privacy was violated, the phone calls collected could have prevented a terrorist attack.
However, this kind of thinking is erroneous, as a different ethical principle needs to be considered. The government's actions are unethical because it gives power to an entity that is not rightfully given to other entities in society. It gives too much power to the government. Bulk collection of telephone metadata not only violates the Constitution of the United States but it is an arbitrary collection of data without purpose or intent. For example, if a guy suspects that one of his friends is having sex with his girlfriend, there are certain legitimate ways he could verify the facts. It would be time-consuming -- as well as a violation of the mutual trust between friends -- to collect all of his friend's email just to find out the truth about two people.
Similarly, searches of private information need to be focused and intentional. Just because technology gives us the ability to sweep information and collect data does not mean we ought to do it. While utilitarianism gives us the right to do something unjust to someone because of its overall "good consequences", doing something unjust presupposes that we knew the consequences in advance. Utilitarianism presumes that the NSA is able to foresee the consequences of all actions, that its rationale is never mistaken, and that all citizens are potential criminals. Of course, the proponents of national security would argue that the collectivity benefits more from the aforementioned violations of individual civil liberties, that one person's misdeeds could harm many other innocent individuals. Much of their argument rests on the notion that if one has nothing to hide, violation of one's privacy should not be an issue. Indeed, it is a sophisticated argument, but it is also an exercise in sophistry. After all, who really wants to be peeped on by strangers?
It is not only that privacy of citizens has been violated, but the process of justice has become private. In cases where the NSA has been indicted, secret FISA courts adjudicate these cases. Where is the transparency in justice? If those who support the breach of privacy the NSA seems to conduct, then the process of justice needs to be transparent. Transparency of justice is a sort of insurance policy for individuals -- who are presumed innocent before proven guilty -- that due process is being exercised. Of course, the privacy of those who seek to harm others, or harm the country, or its people or resources should be apprehended. But what is security without due process of law? If the state has all the power, it is being given a cloak of invisibility. If the state has impunity in how it collects data, then the efficacy of its plan to provide security for the country is undermined. That is, if everyone is being spied on all the time, no discretion is being exercised by the state. If everyone knows they are being spied upon all the time, wrongdoers among us will dedicate their time to outwitting those who are doing the spying, thereby stressing the limited resources the state may have to conduct the spying in the first place. State spying is no guarantee that wrongdoers will refrain from doing wrong, and the risk of making a mistake by bringing the wrong person(s) to justice is too great.
If security and privacy go together, then the program has to be effective. As an analogy, it is like saying that if a property owner wants to place security cameras in front of an apartment to lower crime, then the camera has to be proven to be an effective crime stopper. However, the camera does not prevent the crime. Even with the camera, thieves will attempt to rob. The camera only helps to identify the culprit. It does not stop criminals from being criminal. It is important to distinguish between efficacious crime prevention and false security. If the state thinks that bulk collection of private information is helping to prevent crime, then it is based on a faulty argument. Instead of sifting through personal information, the state ought to prevent terrorist attacks from occurring through other means. Create a program that eliminates the "bulk" in bulk data collection. Even in this case, caution should be the rule. Just because a person googles "plant fertilizer" and "bomb" into a Google Search engine does not mean they plan on blowing up a building. Curiosity is not the same as an intention. Curiosity, albeit unproductive at times, is not the same as criminal intent. It is not a criminal act to carry around an almanac, but it seems that the state, in the cases brought before the Supreme Court, suppress a citizen's interest and pleasure in information.
Privacy of speech is of value, but it is also a fourth amendment right. Our Founding Fathers realized that privacy of speech, and the entitlement to have one's communication sealed is important. The vast amount of communication collected nowadays is innocuous, and does not contribute to the production or the distribution of weapons that could be used to harm American citizens. Spying on the interests of others that goes unchecked is only food for abuse. Unlawful search and seizure should be stamped out in a country that cherishes liberty. Freedom is the ability to express oneself, write, et cetera, without fear of reprisal. The government should not intrude in the affairs of private citizens. It is interesting that people give up their privacy freely. People allow private companies like Facebook or Twitter to enter into their lives. But, these companies have users sign an agreement. The state ought to do the same because they are in the business of guaranteeing the Bill of Rights, so to speak. Citizens should be given the right to opt for or opt out of government data collection programs. If someone wants the government to peek into their private files, then permission must be granted, else such snooping is little more than an egregious violation of one's civil rights.
On the other hand, even when there is reason to be suspicious about a person's activities, government should have to give a justified account (with tangible evidence). The private communication of sitting Senators or Presidents is not freely given to the public to view. We do not demand from the Secretary of State that we read his private emails or hear her private conversations. Even if a person is a "public persona", there is a certain degree of privacy we afford to others. Similarly, the state ought to treat citizens the same way. Securing privacy only makes us safer. When privacy is secured, people trust the state. It stands to reason that in trusting the state, they are less likely to want to harm the state, or its agencies. The actions of the NSA violate this trust. Finally, if the NSA is to continue to do its job, it needs to understand that security does not equate with violation of privacy for the sake of collecting bulk data.