In Defense of Freedom Over the past two months, Congress and the Obama administration have awkwardly attempted a conversation on the balance between “national security” and “personal freedom.” This conversation was touched off by the disclosures of Edward Snowden and the bland confirmation by the NSA that, yes, they really do collect our personal information as revealed by phone calls, emails and Internet searches. This expansive role of the Federal government — in tracking the digital life of its citizens — was apparently authorized by the 2001 Patriot Act, the most insidious piece of legislation in a generation. Now it’s become a blank check for the government to effectively monitor (spy on?) its own citizens. Invariably, when the NSA is challenged on its use of this data, it responds with a variation of the same theme: “We’re at war.” Actually, we’re not. That’s not to say that some Americans aren’t fighting a war. They wear the uniform overseas in Iraq and Afghanistan, often in combat situations, and should receive the thanks of a grateful nation. But the average Joe drinking a double chai latte on Saturday morning, while he watches ESPN on his 40-inch plasma screen? No, he’s not at war. And he is the citizen who is presumably being protected by these programs. That brings us to the issue of constitutional freedom. The United States Bill of Rights is the greatest legal document ever written (with the possible exception of the Ten Commandments). Like its forefather, the Magna Carta, the sole purpose of the Bill of Rights is to limit the power of the Federal government and protect the rights of average citizens against that power. (If you like unlimited centralized power in your government, this is the wrong nation, and probably the wrong culture, for you.) In the Fourth Amendment, the Founders specifically and dramatically limited the ability of the Federal government in regard to “searches and seizures.” Except with a warrant issued by a magistrate which establishes “probable cause” for a crime, the Feds cannot come on to your property and search or seize your possessions. This may be the most important freedom that we have. It’s so important that the 14th Amendment extended this same restriction to state and local governments, a fact recognized by the U.S. Supreme Court and universally accepted. Your home (and your car) is your castle. And no one can arbitrarily disturb you there. Now, there are dozens of exceptions to this general standard — and lawyers argue these points in courthouses every day all across The Great Republic. But the underlying principle remains the same: the government has to articulate a valid reason before it can assert its power against you. In civil cases, which is my practice area, a lawyer can collect information from a third party by legal means. You serve a subpoena on that person and they have a certain amount of time to respond. For example, you serve a subpoena on a cell phone provider to get records of phone calls made by a party (or a witness). Before those records are provided, both the third party, your opponent and the subject of the phone records all have the opportunity to object to the subpoena, either because its overbroad, harassing, or seeks confidential information. Again, these battles are played out in courts every day. Nobody has the power to simply collect whatever they want, ESPECIALLY from communications providers. There is a process, which respects the rights of the persons involved. So why does the Federal government — the only party restricted by the original Bill of Rights — get a pass from these procedural protections? What makes their interest so much more important, such that it is “above the law”? I’m stilll waiting for that answer. And the “we’re at war” answer is not it. The President was once a constitutional professor, although I’m not sure he made these arguments in a courtroom (or sought to quash an illegal wiretap). Regardless, he needs to address this issue in a comprehensive way by limiting NSA data collection and scaling back these programs so that they are focused on valid identified targets, such as done with a wiretap, not arbitrarily turned on the whole population. (A “ombudsman” for the NSA is more bureaucracy — we need less). We don’t need to be collecting the indiscriminate email and cell phone records of 330 million Americans. And, no, we shouldn’t be paying someone to store (or review) that info. That is a waste of taxpayer money. Maybe people are jaded by post-9/11 America. Maybe people assume that the government is watching them anyway. But it’s not what this country is about.
Posted on: Sat, 10 Aug 2013 17:53:05 +0000
Trending Topics
Recently Viewed Topics
© 2015