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February 22, 2008

Don't Worry About Privacy -- You Don't Have Any

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Much to-do is being made of the Bush administration's push for legislative authority under a recently enacted provision of the 1978  Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act (PAA). Under FISA, he must obtain a warrant (one which can be obtained up to 72 hours after surveillance has begun), whereas under the PAA, the president has the authority to eavesdrop on terrorist conversations without a warrant or court permission. While the PAA has only been on the books for approximately six months, the controversy is not over the president's new authority to spy on anyone without accountability -- most senators and many members of congress seem willing to grant this executive request. The real hang-up is whether the telecom industry can be held liable for past cooperation in the government's warrantless surveillance -- the very thing FISA was enacted to combat. However, for reasons of my own -- soon to be explained -- I think the very idea that we have privacy that needs protection is an urban myth, more or less.

To begin, there is the Patriot Act, which made vast inroads to whatever privacy we thought we had. Also, dozens of U.S. Supreme Court decisions (since the Warren Court of the sixties) have been chipping away Fourth Amendment protections in the criminal context, mostly because the justices are loath to let suspected criminals go free because of an illegal search. There are exceptions, of course, but the overall effect of recent Supreme Court decisions has been to vastly expand the circumstances in which the police may search without a warrant.

Whatever the state of the law in our criminal courts, the federal executive branch will use whatever technology is available to ferret out the "enemies of the state," with or without judicial permission. Our national budget allots many billions of dollars to the National Security Agency (NSA), the agency responsible for monitoring the electro-magnetic spectrum, and we the people haven't a clue as to how the money is spent under what's known in Washington as a "black" budget. We can rest assured, however, that the NSA is hard at work to make sure it has access to every communication that occurs in or out of the U.S, save only those disseminated by carrier pigeons (and who really knows about them).

By their nature, civil libertarians oppose the proposition that the executive branch can, without a warrant, legally intercept any and all communications -- domestic and foreign -- if it (in its executive wisdom) thinks terrorists are somehow in the mix. Unlike the FISA, which required judicial approval of wiretaps, the new version of the PAA advanced by the senate, and sponsored by Senator Jay Rockefeller,  makes the government the sole arbiter of whether any particular communication qualifies for warrantless surveillance. This, in the opinion of the ACLU and other similarly-inclined organizations, clearly tramples on the checks and balances inherent in our constitutional form of government. And in doing so, the legislation obliterates our Fourth Amendment protection against unlawful search and seizure. Who can argue with that?

Not me. But I don't much give a damn. Most of my adult life I've assumed that the government is listening in to my calls and emails. And why not? In the 1960s, we were convinced that the FBI or the local cops had taps on our phones, tape recorders in our meetings, and cameras trained on our protests.

Whether this was because of our political activities or illegal drug transactions (consisting primarily of buying and selling bad Mexican marijuana in matchboxes), our sense of self-importance led us to believe we were the center of a law enforcement campaign to put us away for years if not decades. When using the phone we were very careful to speak in what we hoped was undecipherable code, whether about a particular drug transaction or experience, or about plans to engage in civil disobedience. We never doubted that eager law enforcement ears were just waiting for the right words to launch a bust.

Now, of course, we are much wiser. We know there are only so many hours in the day and the government can only listen to so many conversations in real time -- and that ours were and are probably not among them. But the point is, we always assumed we had no privacy when using telephonic communications or engaged in civil rights activity or protests against the Vietnam war. This wasn't paranoia, but rather an understanding that the government had the capacity to listen in, and watch, if it wanted to. And we were pretty sure it did.

Also, back in the 60s, we always assumed the government could get a warrant if it wanted one, and that the only protections we had under the Constitution were if they busted us and we could prove in court that they somehow screwed up the warrant process. As a latter day criminal defense attorney, I'm of the opinion that the warrant requirement didn't (and doesn't) provide much protection. There are numerous loopholes in the warrant requirement itself, and even when one is technically required under current case law, most judges rubber-stamp the applications submitted by the police, and most trial judges uphold warrants issued by their brethren no matter how flimsy the factual basis put forth in the supporting affidavits. There are exceptions, of course, but as the old bromide goes, the exception proves the rule.

There also have been rare instances when the ACLU successfully sued transgressing government agencies for Fourth Amendment violations. For the most part, however, there has been little or no accountability for illegal surveillance that does happen to come to light. The only real accountability for a Big Brother administration is regime change, and even then, the new government will be just as likely to spy on its (or America's) perceived enemies as the last regime. My reading of history is that the level of government surveillance never goes down regardless of who is in power.

In a democracy we theoretically could bring the government to heel on these privacy concerns if, as a people, we were more concerned about privacy. But the fact is, we don't really hold privacy in high regard no matter how we respond to the polls. We are, in fact, addicted to gossip (something common to the entire human race and thought to be the reason we have speech in the first place), and a large part of our entertainment is based on privacy violations of one type of another. It would be nice if we could distinguish social privacy from privacy against government intrusions, but that doesn't seem likely. Our lives are laid bare to the world, and we rather get off on it.

In summary, since we don't have much if any privacy in the first place, we shouldn't worry about what powers the government has under the FISA act, or its amendments and provisions. If you want your communications to remain confidential, stay away from the telephone or figure out a code that is unlikely to trigger the government computers to alert their minders that the conversation warrants further processing. The government has been Big Brother for a long time and, as in 1984, little brother ain't coming back.