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.