A federal appeals court ruled in May, 2015 that the NSA’s bulk collection of domestic calling data is illegal. While such bulk data collection would strike many as blatantly unconstitutional, this matter has not been addressed, though that is perhaps just a matter of time. My intent is to address the general issue of bulk domestic data collection by the state in a principled way.
When it comes to the state (or, more accurately, the people who compose the state) using its compulsive force against its citizens, there are three main areas of concern: practicality, morality and legality. I will addressing this matter within the context of the state using its power to impose on the rights and liberties of the citizens for the purported purpose of protecting them. This is, of course, the stock problem of liberty versus security.
In the case of practicality, the main question is whether or not the law, policy or process is effective in achieving its goals. This, obviously, needs to be balanced against the practical costs in terms of such things as time and resources (such as money).
In the United States, this illegal bulk data collection has been going on for years. To date, there seems to be but one public claim of success involving the program, which certainly indicates that the program is not effective. When the cost of the program is considered, the level of failure is appalling.
In defense of the program, some proponents have claimed that there have been many successes, but these cannot be reported because they must be kept secret. In fairness, it is certainly worth considering that there have been such secret successes that must remain secret for security reasons. However, this defense can easily be countered.
In order to accept this alleged secret evidence, those making the claim that it exists would need to be trustworthy. However, those making the claim have a vested interest in this matter, which certainly lowers their credibility. To use an analogy, if I was receiving huge sums of money for a special teaching program and could only show one success, but said there were many secret successes, you would certainly be wise to be skeptical of my claims. There is also the fact that thanks to Snowden, it is known that the people involved have no compunctions about lying about this matter, which certainly lowers their credibility.
One obvious solution would be for credible, trusted people with security clearance to be provided with the secret evidence. These people could then speak in defense of the bulk data collection without mentioning the secret specifics. Of course, given that everyone knows about the bulk data collection, it is not clear what relevant secrets could remain that the public simply cannot know about (except, perhaps, the secret that the program does not work).
Given the available evidence, the reasonable conclusion is that the bulk data collection is ineffective. While it is possible that there is some secret evidence, there is no compelling reason to believe this claim, given the lack of credibility on the part of those making this claim. This alone would suffice as grounds for ceasing this wasteful and ineffective approach.
In the case of morality, there are two main stock approaches. The first is a utilitarian approach in which the harms of achieving the security are weighed against the benefits provided by the security. The basic idea is that the state is warranted in infringing on the rights and liberties of the citizens on the condition that the imposition is outweighed by the wellbeing gained by the citizens—either in terms of positive gains or harms avoided. This principle applies beyond matters of security. For example, people justify such things as government mandated health care and limits on soda sizes on the same grounds that others justify domestic spying: these things are supposed to protect citizens.
Bulk data collection is, obviously enough, an imposition on the moral right to privacy—though it could be argued that this harm is fairly minimal. There are, of course, also the practical costs in terms of resources that could be used elsewhere, such as in health care or other security programs. Weighing the one alleged success against these costs, it seems evident that the bulk data collection is immoral on utilitarian grounds—it does not do enough good to outweigh its moral cost.
Another stock approach to such matters is to forgo utilitarianism and argue the ethics in another manner, such as appealing to rights. In the case of bulk data collection, it can be argued that it violates the right to privacy and is thus wrong—its success or failure in practical terms is irrelevant. In the United States people often argue this way when it comes to gun rights—the right outweighs utilitarian considerations about the well-being of the public.
Rights are, of course, not absolute—everyone knows the example of how the right to free expression does not warrant slander or yelling “fire” in a crowded theater when there is no fire. So, it could be argued that the right of privacy can be imposed upon. Many stock arguments exist to justify such impositions and these typical rest either on utilitarian arguments or arguments showing that the right to privacy does not apply. For example, it is commonly argued that criminals lack a right to privacy in regards to their wicked deeds—that is, there is no moral right to secrecy in order to conceal immoral deeds. While these arguments can be used to morally justify collecting data from specific suspects, they do not seem to justify bulk data collection—unless it can be shown that all Americans have forfeited their right to privacy.
It would thus seem that the bulk data collection cannot be justified on moral grounds. As a general rule, I favor the view that there is a presumption in favor of the citizen: the state needs a moral justification to impose on the citizen and it should not be assumed the state has a right to act unless the citizen can prove differently. This is, obviously enough, analogous to the presumption of innocence in the American legal system.
In regards to the legality of the matter, the specific law in question has been addressed. In terms of bulk data collection in general, the answer seems quite obvious. While I am obviously not a constitutional scholar, bulk data collection seems to be a clear and egregious violation of the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The easy and obvious counter is to point out that I, as I said, am not a constitutional scholar or even a lawyer. As such, my assessment of the 4th Amendment is lacking the needed professional authority. This is, of course, true—which is why this matter needs to be addressed by the Supreme Court.
In sum, there seems to be no practical, moral or legal justification for such bulk data collection by the state and hence it should not be permitted. This is my position as a philosopher and the 2016 Uncandidate.
The government says “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is not relevant to this issue, because the people are putting their data outside their houses by sending it through (and storing it in) devices belonging to communications corporations. Hence there is no expectation of privacy in this case.
Michael LaBossiere says
That is a very strict interpretation. I would argue that “papers” can be taken broadly as a system of storing information and would cover things such as data files, voice data, and so on. But if it doesn’t, time for a new amendment.
The only way electronic data can be considered “papers” in my “house” is for me to store said data on devices in my house. The government needs a warrant to seize and search my laptop. If I owned a server, on which I stored my email, the government would need a warrant to search that too. Once I hand over my email and other data to Verizon and Google I have no more (4th amendment) right to it. It belongs to Verizon and Google and, because they have it, the government needs a warrant to search their storage devices. I agree the Bill of Rights needs to catch up to the 21st century, but it’s yet to catch up to the 20th century, and is, in fact: a dead letter.
“Julia Angwin talks about the many ways that the government, private businesses, and criminals can and do collect our private data. She argues that, due to the pervasiveness of the dragnet system we live in today, we are in danger of becoming a society that self-censors itself instead of demanding our rights. This event was hosted by the National Constitution Center in Philadelphia.”
Read more: “Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance” – http://tinyurl.com/jwy99h5
VIDEO (10:00) – Book TV: Julia Angwin, “Dragnet Nation” – http://youtu.be/Y7KS6SVM8MM
BOOK TV (54:33) VIDEO – “Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance” – http://www.c-spanvideo.org/program/Dragn
Michael LaBossiere says
Good point. The state doesn’t, as you say, get a warrant for my house, but for the ISP or mail server.
Yeah…what I was talking about here:
when I said
were you to see it to your argumentative advantage to broaden the meaning of “expression” to make your point, you would have no problem in doing so. Hell, you play these little word games all the time. Oh, oh, I meant the narrow definition…no, no I meant the broader one
Excepting of course, AJ’s comment had nothing to do with the meaning, broad nor narrow, of the word “papers”, but instead that the people are putting their data outside their houses by sending it through (and storing it in) devices belonging to communications corporations. Hence there is no expectation of privacy in this case. There’s an old adage, absolutely true or not, that possession is nine tenths of the law. The data is no longer in the possession of the people involved.
You see, our rights in our Constitution are based on something called “reality”. We have the right to free speech, press, practice religion, etc. because when you get down to the nitty-gritty, you get into absurdities trying to control what is essentially uncontrollable, that being the thoughts, impulsive or not, that flow through a person’s head. In this case, our Fourth Amendment right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures exists because our possession are by nature and by definition, protected by us physically. We have the capability to move our possessions anywhere we wish. Government has no natural control over them without a significant and potentially tyrannical action. The government acting to take such would need to use physical force. Just as the government will need to use physical force to take the data that resides on the communications corporations’ servers. This is somewhat complicated by the licensing, which the corporations need for numerous reasons, by the government of the airwaves over which that information originally flowed. Things get a bit muddier there, but my point is our rights are based more on reality than on the whims of mortal men. This is why the Founders, in the Declaration of Independence, said that men are endowed by their Creator with certain unalienable Rights. Granted we are talking the Constitution here, not the DoI, and the DoI was speaking more broadly and less legally of life, liberty, and the pursuit of happiness, but the spirit was the same. The Constitution was simply enumerating such.
Does the IRS have your social security number? Were warrants issued? AS AJ said, is the issue at hand is expectation of privacy. The bulk data that is collected is collected from areas in which you have no expectation of privacy. There are Supreme Court decisions that dealt explicitly with expectations of privacy (Katz vs US).
“In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there are no privacy rights in garbage left for collection in a public place. Other examples include: pen registers that record the numbers dialed from particular telephones;”
There is also the “plain view” law. Police officers do not need a warrant to act on evidence in plain view. So, if a police officer sees a bag of pot in the front seat of your car, he does not need a warrant to seize it.
Also note that other courts have found NSA collection to be legal. They are split at the moment. As in the end of the quote I posted, phone collection was determined a long time ago, when police were collecting info on individual phones. Due to technology, NSA is collecting on many. Same legal principle applies however, and my suspicion is the Supreme Court will uphold at least some of the NSA practices in question.
Michael LaBossiere says
While I know that anything I send via the internet or phone is not actually private, I would argue that there is a right to expect emails, chat, and phone activity to be protected by privacy from the state. Unless the state can show legitimate grounds to get into my business, it has no right to be in my business. Burden of proof is on the government folks.