Privacy without Protection

It is a vicious cycle of government obstacles to make a case. It’s called “standing” in the litigation world; it means you are the right person to bring a case and have a personal and provable claim that you were actually harmed. When it comes to the government’s random searches, data storage and serial snooping into electronic communications, from phone calls, texts, social media or emails, the information you might need to prove you were harmed by such governmental efforts is not available to you. It’s all top secret stuff, and there is no way to get any evidence of such snooping without… er… having personal, tangible and provable evidence of such snooping… because such evidence is almost always top secret. Grrrr….

That’s the way a federal district court in Oakland, California ruled on February 10^th, when it dismissed a case (Jewel vs National Security Agency) against the National Security Agency (NSA) filed by a group of AT&T customers seeking privacy protection, for lack of such standing. Alleging a warrantless search, a violation of the Fourth Amendment’s proscription against such searches, the plaintiffs faced a skeptical Federal judge, Jeffrey White, who dismissed the action.

“The lawsuit alleges the government collects Internet communications, filters out purely domestic messages, and then searches the rest for potentially terrorist related information. Plaintiffs claim the lack of a warrant, combined with an absence of individualized suspicion, violates the Fourth Amendment.

“However, White ruled that the plaintiffs did not present enough specific evidence about the program to establish their right to sue. The possible disclosure of state secrets further precludes plaintiffs from moving forward on the claim, even if they had legal standing.” Reuters, February 10^th.

It’s a balancing act, protecting citizens and the government against genuine threats vs. protecting individual and often constitutionally-guaranteed rights. At some point, violating such privacy rights in the name of national security begins to make the United States look like those repressive, informants and spies everywhere, regimes that the United States has railed against for decades. We literally become what we are purportedly fighting against.

But in an electronic era, the legions of necessary data from which all sort of genuine threats can be detected require some sort of mass analytical approach. You’d like to think that there might be an interim step in which a citizen or U.S. resident might be able to invoke some intervening security-cleared neutral party (with authority) to make an affirmative investigation of possible privacy abuses on such individual’s behalf. If there were in fact an investigation of such individual behind the scenes, secured by a relevant warrant through the intelligent courts or if there were no investigation at all, the applicant would simply be told that after a fully inquiry, the individual’s rights were not being violated. If, however, there were an unlawful investigation, that neutral party would have the right to reveal the facts to the applicant, shut the inquiry down, or both.

This issue has not found final resolution; it will wend its way up the appellate ladder, perhaps (and probably) finding its way before the United States Supreme Court. It would seem that Congress can fashion some remedies along the way… if Congress and the President can ever get anything this sensitive done.

“An attorney for the plaintiffs, who are AT&T Inc customers, said that the judge's ruling did not end part of the case concerning telephone record collection and other mass surveillance… ‘It would be a travesty of justice if our clients are denied their day in court over the 'secrecy' of a program that has been front-page news for nearly a decade,’ said the attorney, Kurt Opsahl, who is deputy general counsel at the Electronic Frontier Foundation [a liberal non-profit with a strong philosophy favoring free speech and opposing government snooping]… The Department of Justice declined to comment.” Reuters. Did NSA-contractor Edward Snowden’s revelations open a can of worms or open this convoluted arena to necessary discussion?

Or is privacy dead and not worth worrying about, as this editorial excerpt from a February 11^th article in the Washington Post suggests: “In the digital era, it’s not only government agencies and Silicon Valley companies spying on us or attempting to monetize our data — it’s our smart TVs and our futuristic cars. And, once the Internet of Things gets fully connected, you can finally say goodbye to privacy, as just about any device will have the ability to eavesdrop on our conversations and report data in real-time. Privacy, once a right, is now not even a social norm.

“In many ways, the end of the age of privacy bears a resemblance to the passing of another great value — chivalry. We all claim to mourn the passing of chivalry – and perhaps at no time more than during the run-up to Valentine’s Day — but consider what chivalry gave us: a patriarchal, hierarchical and class-based society that was literally medieval. Chivalry may have given us honor, nobility and courtly graces, but it also gave us income disparity, gender-specific roles, and a male-dominated boardroom. In short, society outgrew chivalry — just like society is about to outgrow traditional notions of privacy…

“Spend just a few minutes on today’s Internet, though, and you’ll realize that this 125-year-old notion of privacy [embodied in an article in the 1890 Harvard Law Review] is already an anachronism. Our accounts are hacked, our photos are uploaded for all to see, our medical records are open secrets and our intimate dealings and e-mails are ‘proclaimed from the house-tops.’ Instead of wanting to be ‘let alone,’ we now want to be part of communities and networks. To top it all off, ‘pieces of personal information are not only social currency but also more or less the basis for the entire world of online commerce.’”

But who are we? What are our values? Are you prepared to let the world see everything? How close to enabling identity theft do you want to step? And what do we lose if we allow secret government with no privacy limits? The fear of rights advocates is that we stop being “us” in our effort to protect “us,” and that we become “them” instead. But when bombs explode, people die and terrorists brag, the temptation to crush such forces often crushes more than the terrorists.

I’m Peter Dekom, and there is a place in the middle that really needs to be explored.