You have to fight for your privacy or you lose it.
— Eric Schmidt
Last week (5.7.2015), the United States Court of Appeals for the Second Circuit (New York) ruled that systematically collecting Americans’ phone metadata in bulk is illegal. The Court specifically held that the always contentious Section 215 of the U.S.A. Patriot Act cannot be legitimately interpreted to allow the bulk collection of domestic calling records. The decision did not address the constitutionality of the metadata collection program. The court held that the program was invalid as going beyond the scope of the specific statutory authorization for the program. Thus, the decision is of no real import on the critical constitutional questions under the Fourth Amendment.
I am going to out on a limb here & suggest that when we look back at the evolution of the Internet in the first 20 years of the 21st century, it won’t be the phenomenal growth in cloud services, social media, high-speed connectivity, seamless multiple radio access, smart phones, tablets & other mobile smart stuff, the Internet of Things, or the massive security headaches we experienced that will cause us to collectively shake our heads in wonder. No. My guess is that we will be astounded at the amount of personal information that we knowingly (& unknowingly) gave away w/o adequate compensation – for free, basically.
As we go about our daily lives, each of us (here I include individuals & the networked devices we rely upon) generates a staggering amount of information about our personal habits – when & where we awaken, how & where we travel, how we travel, what we consume, whom & when & where we communicate w/ others, what we think about, the state of our health, what we search for, etc.
I would not be surprised that within ten years we will come to view our personal information as a currency, much in the same way we view dollars today. My sense is that the market might be a better arbiter of private information than uninformed public discourse.
Most Americans are still unware that more than 50 government agencies including NSA, CIA, & Homeland Security have carte-blanche access to this mind-boggling amount of data & metadata that most would consider private. Even more are unaware that agencies such as the National Oceanic and Atmospheric Administration Fisheries Office for Law Enforcement (OLE), the Bureau of Indian Affairs Police (BIA Police), the United States Fish and Wildlife Service, the U.S. Postal Police, & even the Amtrak Police have potential access to this same information.
These individuals & organizations tasked w/ protecting our welfare have done what any rational person would do. They have requested every tool in their arsenal in order to do their jobs as effectively as they are able – to protect Americans. To this end, they have been largely successful. The privacy violations that have been documented are a feature that is commonly seen in any type of project management – scope creep. Scope creep occurs when the scope of a project is not properly defined, documented, or controlled, particularly when poor or misleading communication occurs between parties.
The scarcity of public debate on this issue – most clearly evident when a person is apprised of the amount of information gathered about them on a regular basis by both corporate & government entities & responds that, “I’m not doing anything illegal, why do I care?” — is a common response, & is not only naïve, but, I believe, unpatriotic.
It’s evident to most Americans that some amount of domestic surveillance is necessary in an increasingly interconnected & borderless world where the risk of “terrorist attacks” on American soil appears to be increasing. The point that many people disagree about revolves around the concept of some — about the degree, amount, & scope of domestic mass surveillance; & frankly – even given the Snowden revelations – public opinion is remarkably uninformed.
Privacy is a fundamental right, even though it is difficult to define exactly what that right entails. The right to privacy underpins other rights and freedoms, including freedom of expression, association and belief. The ability to communicate anonymously without governments knowing our identity has historically played an important role in safeguarding free expression & strengthening political accountability
The U. S. Constitution contains no express right to privacy.
However, The Bill of Rights clearly reflects the concern of James Madison and other founders for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions against unreasonable searches (4th Amendment), and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information. In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.” The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.
For the above reasons, my sense is that most of us believe that American citizens: Be adequately forewarned about the willy-nilly archiving of personal information, (be it virtual or physical) — their “privacy”, as it were; & that they always be given ample & liberal opportunities to, “Opt-Out” of revealing personal information or classes pf personal information.
It is clear that a division exists in both the House & Senate regarding which agency – DHS (a public agency) or NSA (a defense agency) – will ultimately be responsible as a clearinghouse for the sharing of surveillance information. It is clear from historical, functional, & accountability data that defense and intelligence agencies operate differently from civilian or law enforcement agencies – particularly w/ regards to privacy issues.
The difficult issue here is: How do we most effectively monitor IP-based & cellular communications for, “evil-doers”, while, at the same time refraining from turning these same measures into a backdoor wiretapping program, which – many believe – infringes on a fundamental right to privacy?
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