Other rules governing surveillance have been substantially eased since September 11. The USA Patriot Act allowed prosecutors to bypass established limits on criminal wiretaps and searches whenever they could say that their investigation was focused on “agents” of foreign countries, organizations, or terrorist groups. The same law expanded the FBI‘s authority to use “national security letters” to demand records of citizens’ Web-browsing traffic from Internet service providers without judicial supervision or probable cause.
Attorneys General John Ashcroft and Michael Mukasey each watered down executive branch guidelines regulating FBI counterterrorism investigations, and Eric Holder is planning to dilute them still further. The new rules will reportedly allow FBI agents to rifle through citizens’ trash, search computer databases, and repeatedly assign surveillance squads to track individuals without having any objective basis for suspecting that the person they are investigating has engaged in wrongdoing.
In Chesterman’s view, it is futile to put up much of a fight against the state’s collection of vast amounts of information about our personal lives. The fears of terrorism are too deep, the technology is too advanced, and most people have already been seduced into forfeiting their privacy by Facebook and other modern conveniences. He proposes that we instead create a new “social contract” setting forth the terms under which the government may use such information. But the terms he outlines are frustratingly skeletal, and insufficient to preserve privacy.
Chesterman suggests that intelligence should be guided by three principles: that it be carried out by public authorities rather than private contractors; that it be based on law; and that government be held accountable for its uses. There’s nothing objectionable about any of these suggestions. Intelligence operations often involve a great deal of discretion and judgment, and we might well prefer that they be carried out by government agents rather than by profit-seeking private contractors. Actions guided by law are clearly better than lawlessness. And who could be against accountability? But it’s less clear that such a “contract” would really solve the problems of privacy posed by the age of technological surveillance.
Take the use of private contractors for intelligence operations. Seventy percent of the US intelligence budget goes to private contractors, who on average charge twice what it would cost a government official to do the same task. In 2005, the US spent $42 billion for private contractors’ intelligence work. Following revelations that the Halliburton company, which had been awarded a $7 billion no-bid oil-infrastructure contract in Iraq, was wildly overcharging for its services, private contractors are an easy target. But when it comes to the abuses Chesterman identifies—rendition of prisoners to torture, coercive interrogation of al-Qaeda suspects, and warrantless wiretapping—the problems were not the use of private contractors, but the fact that government officials expressly authorized their actions. These policies would have been just as objectionable had they been carried out exclusively by public authorities.
Chesterman also argues that legal regulation should focus less on the collection of data than on its use by government agents. But he is vague about what such restrictions on use should be. More fundamentally, if we give up on limiting collection, what is left of privacy? The invasion of privacy occurs when the government gains access to information we think it should not have; how it then uses the information is less a matter of privacy than of other concerns, such as discrimination, retaliation, due process, and the like.
George Washington University law professor Daniel Solove shares Chesterman’s concern with the ever-diminishing part that constitutional law is playing in preserving privacy. The first part of his book, Nothing to Hide, succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty. Without a sphere in which we are left alone, we cannot develop the intimacy needed for a fulfilled life, or engage in the kind of confidential communications and associations essential to vigorous political criticism and dissent. As Justice Breyer asked at oral argument in the Jones case, “What would a democratic society look like if a large number of people did think that the government was tracking their every movement over long periods of time?”
In 1956, at the height of McCarthyism, the sociologist Edward Shils wrote that liberal democracy demands privacy for its citizens and transparency from its government. Citizens cannot freely dissent if the state is always listening, and their judgment will not be adequately informed if the government acts under the veil of secrecy. Yet today, it is the citizenry that is increasingly transparent, while government operations are shrouded in secrecy.
Solove’s solution is to reinvigorate judicial constraints by offering a new interpretation of the Fourth Amendment. He suggests that courts should not ask whether government access to an individual’s web-browsing data, for example, invades a “reasonable expectation of privacy,” but whether it “causes problems of reasonable significance,” an intentionally expansive term designed to encompass, among other things, the potential for illegitimate targeting of government critics. Any government action that poses such “problems,” he suggests, should be subject to Fourth Amendment regulation by courts, regardless of privacy.
Solove is surely correct that the Court’s view of privacy is outmoded and unjustifiably narrow. But a Supreme Court already hostile to Fourth Amendment review is unlikely to look with favor on the suggestion that it apply the Fourth Amendment to any intelligence-gathering that presents “problems of reasonable significance.” The Fourth Amendment demands only that “searches and seizures” be reasonable, not that all government action be reasonable. Inviting the court to oversee all “problems of reasonable significance” is not a sufficiently precise, realistic, or persuasive alternative.
Solove’s incisive critique of existing Fourth Amendment doctrine points to a better response. He maintains that the Court’s “all or nothing” approach to privacy is too stark. It leads the Court to conclude that virtually any information derived from public sources is beyond Fourth Amendment regulation, even if it takes extraordinary technology to obtain it. And similar reasoning underlies the Court’s “third-party disclosure” rule, which gives the government unrestricted access to information shared with a third party. A more nuanced approach, in my view, would retain the Court’s focus on “reasonable expectations of privacy,” but would recognize that privacy should encompass information that the government could not realistically obtain without resort to technological innovation that enables sweeping surveillance without human intervention—such as, in the Jones case, our precise physical location over extended periods of time.
Similarly, the fact that in surfing the Internet or sending e-mail we share information with Google should not mean that we thereby automatically consent to share it with the government. The state, unlike Google, can deprive us of our liberty, and is more likely to punish dissent; sharing information with Google and with the government are therefore qualitatively distinct acts. The way to Fourth Amendment reform, in other words, is not to abandon the concept of privacy altogether, but to update it, much as the Court did with respect to wiretapping in 1967.
On August 22, US District Court Judge Nicholas Garaufis did just that, ruling that even though cell phone users automatically transmit their physical location to their phone service provider, the third-party disclosure rule should not apply, and a warrant should be required before the government can obtain such records. As Judge Garaufis wrote,
the fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by “choosing” to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy.2
David Shipler is not a lawyer but a journalist. Where Chesterman and Solove propose new legal concepts, Shipler offers provocative real-life accounts of how privacy has been sacrificed in the modern era. The outlines of some of the stories he tells are familiar, such as the arrest of Brandon Mayfield, a Muslim lawyer in Portland, Oregon, whose fingerprint the FBI erroneously “matched” to fingerprints from the Madrid train bombing in 2004. But Shipler tells these stories with a wealth of fresh detail. One feels almost as if one is living with the Mayfield family as they are subjected to repeated government break-ins, wiretapping, and ultimately their father’s wrongful arrest. Mayfield was freed only when Spanish authorities, who had disputed the FBI “match” from the outset, positively identified the fingerprints as those of an Algerian man. The FBI eventually paid Mayfield two million dollars to settle a lawsuit against it.
Other stories are less familiar. The book’s most disturbing chapters recount Shipler’s nighttime “ride-alongs” with officers from the Gun Recovery Unit in the District of Columbia’s high-crime neighborhoods—located only a few miles from the Supreme Court but, for all practical purposes, as Shipler puts it, in “another country.” Shipler vividly describes a world wholly foreign not only to Supreme Court jurists but to most Americans, in which police routinely subject young black men to intrusive confrontations and searches of questionable legality. The officers’ tactics, exploiting every loophole the Supreme Court has wittingly or unwittingly created, would provoke loud protests if employed against residents of the District’s wealthier neighborhoods. But the young African-American men who are their nightly targets have little recourse other than simmering resentment.
Shipler’s goal is not to reformulate legal doctrine but to show us, through the experience of Americans subject to intrusive police tactics, where existing doctrine has left us; we live in a world where a federal judge can resignedly say, as Shipler quotes US District Judge Paul Friedman, “I don’t think that there’s much left of the Fourth Amendment in criminal law.” As Shipler deftly illustrates, the dual wars on drugs and terror have brought us to this point. Time and again, constitutional law has bent to the imperatives of the state in conflict.
If there is any prospect of change here, it is that protections of rights grow out of the experience of abuse. The international human rights revolution was partly a reaction to the horrors of World War II; the right of equal protection in the United States was defined in response to slavery, the Civil War, and segregation. Reform comes only when the public demands it, and the public demands it only when abuses are disclosed—as happened in the 1970s after a congressional committee headed by Senator Frank Church revealed widespread government spying on peace groups and civil rights activists. The most important contribution these three books make is to reveal and diagnose the problem. It is up to us to demand a solution.
There have been a few such moments since the events of September 11, 2001. Many citizens objected to a Bush administration plan to recruit home delivery employees as government spies, and Congress barred funding of the program. Concerns about the Patriot Act raised by librarians and others led to reform of the “gag rule” that effectively banned librarians and businesses from mentioning, let alone resisting, government demands for information about their patrons. Revelation of the NSA spying program prompted Congress to impose judicial oversight. And the recent controversy in London regarding the Murdoch empire’s hacking of phone messages of ordinary victims of extraordinary tragedies has the potential to drive further reforms. If the right of privacy is to survive, it will be because citizens, enraged by stories like those Shipler tells, recognize that it is not enough to shrug one’s shoulders and say, “I have nothing to hide.”
2 In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, Case No. 10-MC-897 (NGG) (E.D.N.Y. Aug. 22, 2011). ↩
In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, Case No. 10-MC-897 (NGG) (E.D.N.Y. Aug. 22, 2011). ↩