The current news has been dominated by headlines over Edward Snowden’s leak of the NSA’s PRISM program and exactly what the story means for the society in which we live. The latest developments over the last 48 hours can be read at the Washington Post blog here. Assuming the details of Snowden’s leaks are accurate, the federal government now has access to virtually anything over the internet, including personal emails and/or personal conversations via chat mediums. Some citizens have been outraged of course, but polls have shown that the public as a whole does not seem to care that much. The question now is whether there is really anything left of the right to privacy in our particular democracy, with our particular Constitution.
Many may not know that the word “privacy” never appears in the Constitution and the “right to privacy” is never expressly outlined in the Bill of Rights or anywhere else in the document. Instead, the right to privacy has been interpreted from the courts based on an implied concern over privacy found in the Third Amendment (securing the right of Americans to not have soldiers quartered in their home) and the Fourth Amendment (rights against unreasonable search and seizure).
The problem is that when the Founding Fathers wrote the Constitution, it would literally take weeks, if not months, for a written letter to get from Philadelphia to South Carolina. The letter would be sealed and may cross the hands of a few people depending on how it was delivered.
Today, the same message is transmitted in less than a second across a server that thousands of people theoretically have access to. Indeed, the electronic message could not be sent without the efforts of millions of people who put together the physical network and the software which enables the link to your cute kitten video to be communicated instantly from New York to San Francisco.
And is not only the communication which has changed. In 1789, the biggest threat to government was a group of farmers who rose up in rebellion and temporarily took over a good portion of Massachusetts. There were no chemical weapons, no dirty bombs and no airplanes to fly into buildings.
So the question is whether our current Constitution can adequately strike the right balance between our need for privacy and our need for safety in the digital age.
The White House has defended the NSA program by arguing that it has been approved by all three branches of government, including a Republican controlled House of Representatives, but there are multiple problems with this argument.
First, it has become plainly evident that while many elected representatives did know about PRISM, most notably Speaker, John Boehner, others were either out of the loop or without knowledge of the full depth and breadth of the program. What this means is that it was not the House of Representatives that approved of PRISM, but instead, a select group of representatives hand-picked by the most powerful members of their respective parties.
Secondly, there is tremendous pressure on elected officials to stress safety over privacy. Imagine if the Republicans had thrown a fit and stopped the PRISM program upon learning of its existence, and then a terrorist attack happens that could have been prevented through electronic surveillance. If the story leaked, which now appears like a realistic possibility, the Republicans would get the blame. This motivation to avoid political blame exists on both sides, as Democrats opposed much of the Bush administration agenda, but were largely willing to let the Patriot Act slide by without much opposition.
Then there are the courts, which are best suited to protect the rights of Americans even when it is unpopular given their lifetime terms. Once again though, there are problems with relying on the courts to stop invasions of privacy such as those that may exists under PRISM.
When a judge hears a request from the Justice Department for a massive collection of phone data, for example, the hearing is done in secret. This means the judge only hears the evidence that the Justice Department wants them to hear. Groups who may have a counter argument, such as the ACLU, are never allowed to state the case for privacy. The American government is based on the theory that a good decision will result when counsel are allowed to vigorously advocate for each side, but this does not happen in these cases.
Secondly, the opinions of these judges are never released, and therefore not subject to the normal process of appeal which can correct errors. The lack of publication also allows the judge to escape public scrutiny.
Finally, often the Justice Department is allowed to make a circular argument with the requests. The argument essentially goes, we cannot tell you why we need this information because the reason why we need it is classified, and the information we may collect could be classified.
As documented by the Wall Street Journal, there have been 33,900 surveillance requests made by the government over the last 33 years. Only 11 of those requests, or 0.3 percent, have been denied by a Foreign Intelligence Surveillance Court (FISC) over that time.
The “checks and balance” system now appears entirely out of balance, with no real effective check, leaving open the possibility that those in power have finally found a way to escape the protections the Constitution was supposed to provide.