What's mine is mined...
Privacy has lately been on the public mind, this time in the form of debate about the Defense Department's Total Information Awareness program. Headed by Reagan redux John Poindexter, TIA aimed to put the Pentagon in the data-mining business, culling commercial and government databases for patterns among telephone calls, visa applications, credit card purchases and the like. The goal was to develop a tool that would more easily "connect the dots" and foil terrorist plots before they can take place. This, you'll recall, was one of the criticisms of the federal government in the aftermath of 9/11 -- that the various federal agencies charged with intelligence gathering and law enforcement failed to connect the dots that would clearly have pointed to the 9/11 terrorists' plans.
According to critics, TIA is Exhibit A for the proposition that privacy is being eroded in the name of national security. Civil libertarians and critics across the political spectrum (the traditional coalition of left-of-center liberals to such conservative stalwarts as William Safire and Grover Norquist) have seen in TIA a Big Brother conspiracy, and have raised the spector of government dossiers on each and every one of us. Those criticisms culminated in the Senate voting to defund TIA.
Two important points seem to have been lost in the rhetoric surrounding the TIA, however. The first is that privacy is not a Constitutionally-guaranteed freedom, and may not be a protected right at all; to the extent that it is, it is found among the "penumbras" of rights, or rights implied by the concept of an ordered society, that have been discovered by the Supreme Court over the years. The Court, in Roe v. Wade reminded us as such:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy.
The second (and related) point is that privacy isn't, and never has been, absolute (a fact that is true of most so-called "fundamental" rights). There is always a balancing of governmental versus individual interests so that, for example, in the face of a "compelling state interest", the state may restrict where and when you may demonstrate or what you can say (despite the First Amendment's guarantee of free speech), or may compel its citizens to serve in the armed forces (despite the Thirteenth Amendment's guarantee against slavery) [link 1 link 2]. This means that, even if privacy is deemed a fundamental right, that right must co-exist with limits on that right born of compelling state interest.
All of which brings us back to the contemporary problem of privacy and the TIA. The Weekly Standard has an interesting opinion piece about the TIA program. [link]. Among the things that it points out is that the data being mined by the government would be stripped of identifying information so that if the system identified that a particular trend existed, it would remain anonymous until a court order was obtained permitting investigators to see the identifying information. In this way, it would, according to its proponents, comply with Constitutional safeguards while still being useful to investigators.
Essentially, the commentator's point is that the TIA program has been inaccurately branded as a manifestation of Big Brother and an invasion of our sacrosanct right to privacy. As the article correctly points out, in the first place, TIA doesn't expand the things that our government can do now legally -- that is, there is currently no prohibition on data mining, and no reason why the government couldn't troll commercial databases for possible links to terrorism. TIA was intended to streamline the process by providing a software platform and infrastructure that facilitates data mining across databases, but that's a far cry from saying that the government is being authorized to create dossiers on its citizens, as critics have charged. Moreover, assuming that the procedural safeguards are observed, the requirement to obtain a warrant in order to tie a trend to a person or people would place the TIA program on par with any number of police procedures -- wire taps come to mind -- that have been deemed constitutionally sound under the Fourth Amendment. So far so good. I would add to these points that although it hasn't been clearly articulated by TIA's supporters, I can conceive of any number of compelling state interests that could balance the privacy concerns voiced by TIA critics.
This isn't to say that there aren't problems with the program, or that, as it was conceived, I would whole-heartedly support it. Among my concerns, for example, is why the project originated out of DARPA (a Pentagon agency) and not the FBI (or some other domestic law enforcement agency). Generally, the Posse Comitatus Act of 1878 prohibits the armed forces (except in narrow circumstances) from being involved in domestic law enforcement; although there are exceptions in which DoD can provide "technical support", these tend to be situations (ordinance demolition, for example) in which the armed forces are better equipped to perform a given task than domestic law enforcement. In any event, none of the "technical support" exceptions are obviously applicable [For a more in-depth look at the role of the Department of Defense in combating domestic terrorism, check out this Congressional Research Service Report].
For another thing, the Bush administration's track record on terrorism and Constitutional protections seems woefully unencouraging -- at least one federal judge has excoriated the Justice Department for withholding information necessary to determine whether the detention of Yasser Hamdi as an "enemy combatant" is legal or not ("If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi in the present circumstances, then it would in effect be abdicating any semblence of the most minimal level of judicial review" [link]). Before I could support TIA, I'd want to know what level of information and what level of exigency would justify the issuance of a court order linking the TIA-identified trends and the people making up those trends.
Finally, I'm concerned that if the purpose of TIA is to ferret out terrorist activity, would individuals identified by TIA be treated as suspected enemy combatants (subject to diminished constitutional protections) or suspected criminals (with the full suite of constitutional protections)?
On balance, however, these issues have less to do with how the TIA program is unconstitutional because it invades privacy and more to do with how the Bush administration would handle this otherwise legal power. A hauntingly familiar refrain, but at least, to my mind, anyway, more on point.
Privacy has lately been on the public mind, this time in the form of debate about the Defense Department's Total Information Awareness program. Headed by Reagan redux John Poindexter, TIA aimed to put the Pentagon in the data-mining business, culling commercial and government databases for patterns among telephone calls, visa applications, credit card purchases and the like. The goal was to develop a tool that would more easily "connect the dots" and foil terrorist plots before they can take place. This, you'll recall, was one of the criticisms of the federal government in the aftermath of 9/11 -- that the various federal agencies charged with intelligence gathering and law enforcement failed to connect the dots that would clearly have pointed to the 9/11 terrorists' plans.
According to critics, TIA is Exhibit A for the proposition that privacy is being eroded in the name of national security. Civil libertarians and critics across the political spectrum (the traditional coalition of left-of-center liberals to such conservative stalwarts as William Safire and Grover Norquist) have seen in TIA a Big Brother conspiracy, and have raised the spector of government dossiers on each and every one of us. Those criticisms culminated in the Senate voting to defund TIA.
Two important points seem to have been lost in the rhetoric surrounding the TIA, however. The first is that privacy is not a Constitutionally-guaranteed freedom, and may not be a protected right at all; to the extent that it is, it is found among the "penumbras" of rights, or rights implied by the concept of an ordered society, that have been discovered by the Supreme Court over the years. The Court, in Roe v. Wade reminded us as such:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy.
The second (and related) point is that privacy isn't, and never has been, absolute (a fact that is true of most so-called "fundamental" rights). There is always a balancing of governmental versus individual interests so that, for example, in the face of a "compelling state interest", the state may restrict where and when you may demonstrate or what you can say (despite the First Amendment's guarantee of free speech), or may compel its citizens to serve in the armed forces (despite the Thirteenth Amendment's guarantee against slavery) [link 1 link 2]. This means that, even if privacy is deemed a fundamental right, that right must co-exist with limits on that right born of compelling state interest.
All of which brings us back to the contemporary problem of privacy and the TIA. The Weekly Standard has an interesting opinion piece about the TIA program. [link]. Among the things that it points out is that the data being mined by the government would be stripped of identifying information so that if the system identified that a particular trend existed, it would remain anonymous until a court order was obtained permitting investigators to see the identifying information. In this way, it would, according to its proponents, comply with Constitutional safeguards while still being useful to investigators.
Essentially, the commentator's point is that the TIA program has been inaccurately branded as a manifestation of Big Brother and an invasion of our sacrosanct right to privacy. As the article correctly points out, in the first place, TIA doesn't expand the things that our government can do now legally -- that is, there is currently no prohibition on data mining, and no reason why the government couldn't troll commercial databases for possible links to terrorism. TIA was intended to streamline the process by providing a software platform and infrastructure that facilitates data mining across databases, but that's a far cry from saying that the government is being authorized to create dossiers on its citizens, as critics have charged. Moreover, assuming that the procedural safeguards are observed, the requirement to obtain a warrant in order to tie a trend to a person or people would place the TIA program on par with any number of police procedures -- wire taps come to mind -- that have been deemed constitutionally sound under the Fourth Amendment. So far so good. I would add to these points that although it hasn't been clearly articulated by TIA's supporters, I can conceive of any number of compelling state interests that could balance the privacy concerns voiced by TIA critics.
This isn't to say that there aren't problems with the program, or that, as it was conceived, I would whole-heartedly support it. Among my concerns, for example, is why the project originated out of DARPA (a Pentagon agency) and not the FBI (or some other domestic law enforcement agency). Generally, the Posse Comitatus Act of 1878 prohibits the armed forces (except in narrow circumstances) from being involved in domestic law enforcement; although there are exceptions in which DoD can provide "technical support", these tend to be situations (ordinance demolition, for example) in which the armed forces are better equipped to perform a given task than domestic law enforcement. In any event, none of the "technical support" exceptions are obviously applicable [For a more in-depth look at the role of the Department of Defense in combating domestic terrorism, check out this Congressional Research Service Report].
For another thing, the Bush administration's track record on terrorism and Constitutional protections seems woefully unencouraging -- at least one federal judge has excoriated the Justice Department for withholding information necessary to determine whether the detention of Yasser Hamdi as an "enemy combatant" is legal or not ("If the Court were to accept the Mobbs Declaration as sufficient justification for detaining Hamdi in the present circumstances, then it would in effect be abdicating any semblence of the most minimal level of judicial review" [link]). Before I could support TIA, I'd want to know what level of information and what level of exigency would justify the issuance of a court order linking the TIA-identified trends and the people making up those trends.
Finally, I'm concerned that if the purpose of TIA is to ferret out terrorist activity, would individuals identified by TIA be treated as suspected enemy combatants (subject to diminished constitutional protections) or suspected criminals (with the full suite of constitutional protections)?
On balance, however, these issues have less to do with how the TIA program is unconstitutional because it invades privacy and more to do with how the Bush administration would handle this otherwise legal power. A hauntingly familiar refrain, but at least, to my mind, anyway, more on point.
posted by Daniel at 11:42 AM
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