Privacy Rights versus National Security: Understanding What’s Fueling the Fire

We will occasionally hear the phrase “a delicate balance” when confronting public and national issues where two or more of our societal rights or our governmental responsibilities overlap or come into conflict with respect to the ‘precedence’ or ’priority’ that one might have relative to another. The current national security versus privacy conflagration has our law makers, governmental agencies, media, political parties and various segments of the public being consumed in heated arguments and fiery proclamations spreading like drought driven wildfires across the nation’s landscape.

No one is or should be surprised that we find people with views diametrically opposed to one another and are looking for our political leaders to quench the fires burning through our society with a resultant decision that satisfies their position’s expectations. This will be a challenge for our politicians that will certainly be worthy of a Solomon-like determination of an answer for how to accommodate both individual privacy rights and the responsibility to protect the nation’s security. However, to expect our leaders to effectively and reasonable arrive at a sound and viable solution that properly respects our rights to privacy and to ensure our country’s security interests requires a lot from our politicians. Politicians to be qualified to deal with these issues would necessitate that they are informed, intelligent and rational individuals capable of dealing with the breath and depth of the factors and facets that are encompassed within conflicting demands between rights and responsibilities. Given we are talking about our politicians in Congress, we are asking for more of them than they have been able to demonstrate being capable of even when dealing with far less complex and contentious issues.

In the area of protecting our privacy rights, we would all have to agree that our societal contract, the Constitution, definitively provides for protection of our “persons, houses, papers, and effects” against “unreasonable search and seizures”. Now as clear and obvious as this may be there are several dimensions of this freedom that do deserve some discussion in the context of the protection or the search. Where the government is obtaining a copy of information pertaining to various activities: phone calls, text messages, banking and credit card transactions, post office mailings, and internet searches and activities; is the acquisition of the data itself a search? Is it a seizure? The process of obtaining the data does not in and of itself perform any search-like function. Nor is it clear they any individual has lost anything in as much as they have, possess and can use all the information that they had prior to, during and after a copy was made. Nothing has been lost in the context of person or property. So is the act of having a copy of information a violation of anything? If not acted upon in reference to you as an individual is the possession of that information an invasion of privacy?

If so, what is the nature of the violation? Banks, phone companies, internet providers and search engine companies, and many other entities have copies of information about you. Some of these companies are obligated to protect your privacy rights relative to much of that information. In the case of these various companies, the possession of the information is not in and of itself a violation of your rights. What makes the government’s possession substantively different? Does looking for a needle in a haystack mean that the rights of the hay are infringed? Doesn't it matter if the looking has an impact on the hay?

What if I look at your data but don't know who it relates to? Is your privacy affected if the information is not informative about you? So scanning and searching through data for connections and associations without picking out you or even your information as relevant, and being done by a computer algorithm, is your privacy breached? By whom? To what effect?

 

The government's collection of 'massive' amounts of data by itself can make you ask, why and what are they doing with it? Certainly one can be legitimately concerned with what the government's interest and intentions are, and with the efficacy with which they manage its use to fulfill those purposes. But does the act of accumulation raise the action to the level of a violation of your, mine or anyone's privacy rights? I think that another dimension of the issue is required to make any progress on this. Possession may be nine-tenths of the law, but it doesn't seem to be sufficient to clear the bar on being a privacy invasion without something more.

So the potential is there, we just need to think through the nature of what 'more' is; thus more is next.

National Security versus Personal Freedoms

One of the fallouts from the Snowden security breach is the conflicting interest of national security versus the potential for governmental violations of our freedoms and civil liberties. Curiously the uncrossable political fissure between Democratic and Republican parties that are omnipresent in almost every other issue that confronts the nation. In this case, the Republicans are not universally set on thwarting any actions on the part of Democrats, nor are all Democrats intent upon imposing their will upon Republicans who ubiquitously oppose them. Somehow the government's information collection programs have instantly touched an issue that goes straight to the core of individuals beliefs on both sides; and in doing so short-circuited the knee-jerk reaction to “oppose on principle” anything that our current day politicians use in responding to every other national issue, question or debate. While I am amazed that there was an issue that would actually demonstrate that our politicians possess even a small ability to think, I am not sure that it will show in the end that they can think competently.

What we have is a situation where Republicans and Democrats are staking out positions that will resonate with their core constituencies and then try and twist and contort the discussion / debate to best suit their political interests. They will allocate blame where it doesn't belong, attribute motives that didn't and doesn't exist, and they will lie to the American principally because that is what we have bred our politicians to do. You can't after all breed and train pit-bulls to be attack dogs and then expect them to be safe and docile pets.

What is less likely to happen is for our politicians to actually formulate an informed and reasoned discussion and debate about the issues involved. Instead of recognizing and admitting that these are, have been, and will always be conflicting interests and facets of our society. As with most issues, our Republican and Democratic representatives will decide what their position is, insist that they are right and tolerate no consideration of anyone else's views, and as always demonstrate no understanding or insight into how to deal with this conflict of public interests in an intelligent manner.

Many Americans will cheer one side or the other, because they have come to view politics as a sport and entertainment. Looking for a 'win' for their side and a 'loss' for the other without any perspective on what the 'win' costs them or means to the nation. If their side 'loses' then they will seek ways to reverse the 'loss' without ever having considered if the outcome resolves their basic underlying concern. The 'loss' will not go unrevenged.

To salvage victory for the American people from this gladiatorial display of political theater, the public will need to strenuously seek opportunities and outlets where the facts are presented and discussed, where the functions and processes used are understood in the context of individuals personal information and details, what purposes and objectives are intended by involved agencies, and how freedoms are either impacted or impinged upon by those processes. Additionally, these discussion should present what the values and impacts of performing the functions are against the consequences and impacts of not doing them. Lastly, proposals for how to amend or adjust the policies, laws and processes that accommodate a reasonable and prudent accommodation that best serves and protects both the public's freedoms and the public's security is required; both of which are Constitutional mandates of our society.

A follow-up article on the issues involved will be forth coming.

Standing ‘Stand Your Ground’ On Its Head

Now that the verdict is in and the legal system has had it day-in-court on the Zimmerman/Martin (Z/M) case, it’s an opportune time to look at the Stand Your Ground (SYG) law and the Z/M case in a structural manner. The general premise of SYG laws is that you have the right to defend yourself without the condition of attempting to avoid, evade or flee from a confrontation. So if your person is at risk of harm, you can use force to protect yourself and be either immune from prosecution or use SYG as the basis of your defense that your actions were legal and justifiable. In the Z/M case, the SYG law was stated as the defense’s position for exempting a determination of murder and justifying the homicide as an act of self-defense. Whether you adhere to the defenses view of self-defense or the prosecutor’s view of murder, independent of the jury’s decision of ‘not-guilty’, you should be able to easily resolve and answer the following questions consistently and without any conflict.

Let’s imagine two individuals: AA and BB. Each is a male, they are of different ethnic backgrounds, and they differ in age by roughly 10 years. They interact with each other in an area that each has a reasonable and legal right to be. You don’t know these individuals and should be careful to not assume any fact or condition not explicitly stated to be applicable to the situations presented.

Situation 1: AA approaches BB, and AA inquires, “Why are you here?”  BB and AA begin engaging in back-and-forth shouts to the effect that “it’s none of your business”’ and “get out of my face”. After just a few minutes, AA believes that BB is going to escalate the confrontation to the point that AA’s well-being/person is at risk. BB uses a pointed-finger to poke AA in the chest. A struggle ensues and AA kills BB. When the police arrive, AA states that they were afraid for their life and this is a SYG case of self-defense.

                Does SYG apply, and was it self-defense?

Situation 2: BB has been following AA for several minutes, and AA becomes aware that BB is following them. BB approaches AA, and BB inquires, “Why are you here?”  BB and AA begin engaging in back-and-forth shouts to the effect that “it’s none of your business”’ and “get out of my face”. After just a few minutes, AA believes that BB is going to escalate the confrontation to the point that AA’s well-being/person is at risk. BB uses a pointed-finger to poke AA in the chest. A struggle ensues and AA kills BB. When the police arrive, AA states that they were afraid for their life and this is a SYG case of self-defense.

                Does SYB apply, and was it self-defense?

Situation 3: BB has been following AA for several minutes, and AA becomes aware that BB is following them. AA approaches BB, and AA inquires, “Why are you here?”  BB and AA begin engaging in back-and-forth shouts to the effect that “it’s none of your business”’ and “get out of my face”. After just a few minutes, BB believes that AA is going to escalate the confrontation to the point that BB’s well-being/person is at risk. BB uses a pointed-finger to poke AA in the chest. A struggle ensues and BB kills AA. When the police arrive, BB states that they were afraid for their life and this is a SYG case of self-defense.

Does SYB apply, and was it self-defense?

Situation 4: BB has been following AA for several minutes, and AA becomes aware that BB is following them. AA approaches BB, and AA inquires, “Why are you here?”  BB and AA begin engaging in back-and-forth shouts to the effect that “it’s none of your business”’ and “get out of my face”. After just a few minutes, AA believes that BB is going to escalate the confrontation to the point that AA’s well-being/person is at risk and BB believes that AA is going to harm them on an equivalent basis. AA uses a pointed-finger to poke BB in the chest. A struggle ensues and BB kills AA. When the police arrive, BB states that they were afraid for their life and this is a SYG case of self-defense.

                Does SYB apply, and was it self-defense?

Situation 5: BB has been following AA for several minutes, and AA becomes aware that BB is following them. AA approaches BB, and AA inquires, “Why are you here?”  BB and AA begin engaging in back-and-forth shouts to the effect that “it’s none of your business”’ and “get out of my face”. After just a few minutes, AA believes that BB is going to escalate the confrontation to the point that AA’s well-being/person is at risk and BB believes that AA is going to harm them on an equivalent basis. One of them uses a pointed-finger to poke the other in the chest. A struggle ensues and one kills the other. When the police arrive, ?? (the surviving individual) states that they were afraid for their life and this is a SYG case of self-defense.

Does SYB apply, and was it self-defense if AA is the survivor?
What if BB is the survivor?

Last situation: If the prosecution in the Z/M case were to have claimed that Trayvon was killed when he was reasonably and justifiably “standing his ground” in self-defense, is it logically and reasonably possible that someone SYG can kill someone else SYG and be completely acting in a legal and acceptable manner?  Does it depend upon who is SYG first? And if so, how do you determine that?

One of the problems with SYG is that it relies upon an assessment of when and what constitutes a condition of risk that cannot be guaranteed to be deterministic in a given case. So when you wind up with an absolute certainty of what the Z/M case was, no matter which side, would you be comfortable with that same clarity should you be in the AA or BB shoes?