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Certainly there are arguments about data collection.  Facebook does it, Google does it, and why they should be free to quietly collect some kinds of personal data and not the NSA?  Maybe folks being squeamish about the NSA and other agencies of government collecting  varieties kinds of personal data is an inflated debate.  I thought Jill Lepore made some good points on the history of privacy last week in The New Yorker THE PRISM: Privacy in an age of publicity ,”

 As a matter of historical analysis, the relationship between secrecy and privacy can be stated in an axiom: the defense of privacy follows, and never precedes, the emergence of new technologies for the exposure of secrets. In other words, the case for privacy always comes too late. The horse is out of the barn. The post office has opened your mail. Your photograph is on Facebook. Google already knows that, notwithstanding your demographic, you hate kale.

Here we go, arguing about privacy rights when what you watch, what you read online, what you have purchased with a credit card, etc., are not really private. What is known about you is a confession of who you are, a whispering through the data collection screen to an unknown listener.  This could be used against you.
Brandeis’s dissent in Olmstead is, in effect, a continuation of the argument that he had begun in 1890. He thought that wiretapping was just a new form of coerced confession—the replacement of “force and violence” by wires and electrical current. At one time, Brandeis said, the government “could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life—a seizure effected, if need be, by breaking and entry.” But, in the twentieth century, he went on, “subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Isn’t that ugly?  But if the concern is safety and law-enforcement then, yes, we want to know what was whispered in the closet, because we want to prevent malefaction , murder; crime is is not in our interest.   On the other hand, we do not particularly wish to be listened to.  Not only is this about privacy, but the sense that we are not all inclined to do evil to our neighbors or to the nation.  In the world measured by such surveillance, we are considered guilty until proven innocent.  But we know our intent, which might not be evident in our words when spoken privately, whatever foolish things we write or say.  Our sense of what is proper does not include being listened to.

Stephen Knott and Angelo Codevilla took up the argument about NSA and privacy in debating posts on the Liberty Law Blog of The Online Library of Law and Liberty.  Knott, in ” Publius and the NSA Surveillance Program” argues for prudence and for surveillance of electronic information as a practical and historical imperative, arguing especially against the efforts of Congressman Justin Amash and Senator Rand Paul.

Amash’s over-the-top rhetoric verges on the paranoid, as when he characterized the efforts of the White House and the Director of the NSA, General Keith Alexander, to block his amendment: “The U.S. government has come out in full force against you, the American people. I will always stand with you.” Might General Alexander rightly believe that he also has the interest of the American people at heart, keeping in mind the intelligence failures associated with 9/11?

No, we do not wish to be under any attack that could be prevented.  Neither do we wish to feel ourselves besieged by both terrorist organizations and our own government.  We would like to think that what we feel about this counts.  In  ” The Ruling Ties That Bind ,”  Codevilla argues from that point of view, observing that “The polls leave no doubt how unpopular is the NSA’s collection of metadata on Americans’ phone calls, and on the substance of computer communications: Three fifths disapprove specifically. Only one fourth approve.”  He notes bipartisan support of the NSA surveillance measures by our politicians, especially those on the Intelligence and Armed Services committees.  He sees less than honorable reasons  for their support, as if national security concerns were irrelevant to the argument.

The concern about NSA surveillance and our privacy is that they are not doing this very well.  Arguments over “What would Jefferson do?” with modern surveillance technology seems a little beside the point since we are not dealing with a Jefferson-sized government anymore.  It is simply not unreasonable to worry about how our government will use or misuse the data it collects.  If this were all about national security, I might be content to ignore the NSA rumbling around in our metadata closets, but this is not evident and other branches of government want the data .  Anyone who has been caught up in data system mishaps knows how miserable is the extrication process; once data is mis-recorded the error takes on a life of its own within computer systems.

Maybe what we think we know about privacy is not true and has never been true.  I’m not sure anymore.  But I know this, privacy as dream and a hope could become even more dear to us in the future.


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