Friday, November 2, 2007

An Essay On Privacy in the USA

Yes, this is a long post. But, I hope, worth it.

The claim that privacy is not a Constitutionally-guaranteed right is a valid one, since the word "privacy" is not used anywhere in any of the documents our Founding Fathers used as the basis for the Constitution. But the facts of the matter are that we are still guaranteed a level of privacy in that the government isn't supposed to be able to snoop into any kind of private affairs without both due process and a warrant. This raises the question of warrantless wiretapping and creates an issue of Constitutionality. Yet our president maintains that we're not afforded a right to privacy under the United States Constitution. I happen to disagree, and here's why:

The definition of privacy in the Constitutional context is to be free from intrusion, interference, or influence of government in our personal spaces. This includes communications, and the sovereignty of a person within their home. However, a warrant can be issued that temporarily suspends that right if there is a probable cause or provable belief that something illegal is happening. Thus, the government's ace-in-the-pocket is to have a warrant before they invade what is essentially sovereign space. We need an oath or affirmation that they believe something is happening, and that's the only purpose they can be there for.

For example, if a police officer believes that there is a drug dealer living in a certain apartment, that officer can swear out a warrant for the property which covers drugs, drug residues, drug paraphernalia, weapons, and the drug dealer himself. The officer then typically knocks politely on the door (and occasionally uses a battering ram for knocking not-so-politely when they require the element of surprise to prevent the stashing of drugs), and enters the property. But let's say that instead of drugs, they find an illegal gambling operation instead. The officer didn't specify any gambling equipment, and his discovery precludes him from being able to use what he sees as evidence against the occupants in a legal case. In spite of the fact that he sees illegal activity, he cannot place anyone under arrest, and he has to disregard anything he sees that isn't contained in the warrant.

But in recent years, officers have received expanded power that allow them to "camp" on the spot and obtain another warrant for the new criminal activity while they wait. So it's not drugs, but the occupant of the property is still likely going to jail for breaking the law, this time on a somewhat lesser charge, in the eyes of most citizens.

The original intent was that officers should obtain solid proof before the fact. They should have enough of an idea of what's happening that such a mistake isn't made in the first place. The fact that there was a lot of traffic in and out of the property is a sign that something is happening, it's true, but the real question is whether or not that the something is illegal activity, such as drugs. Officers are no longer allowed to use their own judgment under the law, because the people have learned that police forces can be sued. What this means is that there is an "us versus them" mentality, and one which should not be acceptable. Officers should respect the dignity and sanctity of a person's home enough to get all of the facts before they enter.

Governmental intrusion into a person's home is still relatively rare here in the United States. In other countries, where there is no protection, officers may walk in at will. England is the only country in the world where individual privacy has been held to a higher standard than ours, and still has a long way to go in order to afford a level of autonomy that allowed democracy to take root. You see, privacy is so fundamental and so basic a need for democracy that any encroachment on individual privacy from government intrusion at any level, or by anyone in a position of power should be considered an assault on democracy as a whole. By removing the ability of people to be private in their own homes, we effectively prevent the very thing that creates democracy: free thought.

Knowing that the police cannot simply barge in on you for no reason is a comfort that only those in a democracy can know. Such relaxation allows individuals to arrive at thoughts they would not normally be able to have. Having lived in an area where privacy was not permitted to this extent, I can say that it alters one's ability to think clearly and rationally about things. But on the flip side of that coin, it also enhances some kinds of neuroses, so too much sanctity probably isn't a good thing. However, people who live in a home should not expect privacy from one another, because of the nature of living together. The expectation should be that those in power cannot intrude at will, be they landlords, employers, businesses, or government. The sanctity of the home has been upheld numerous times and in numerous ways, and yet the Bush Administration persists in its insistence that there's nothing wrong with warrant-less wiretapping. The expectation has been set, they say, that our private communications are now forfeit. Such intrusion is against the Constitution.

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This is essentially the entire scope of the right to privacy in the United States. But we need to look at the original intent in order to really understand what they meant.

First and foremost, the security of a person against unreasonable search and seizure means that unless officers have a clear idea that a person is carrying something illegal, they cannot simply search that person. They must first obtain a warrant to go through someone's pockets. I see this provision violated all the time on television cop shows, though it's justified because officers were looking for weapons instead of the drugs they found. Well, no warrant, no arrest. They can confiscate the drugs as contraban, but the real issue here is that unless they had reasonable suspicion that someone was actually carrying the drugs, the drugs should be inadmissible in court. As detrimental to society as that sounds to some people, the price of democracy is that right to be free from unreasonable search or seizure. Please note that it does not say "government" anywhere in the Fourth Amendment: this implies that the freedom is inalienable, and applies to pretty much anyone.

The right to be secure in their houses against unreasonable search and seizure means that nobody (government or otherwise) can intrude on a person's home. Police seem to believe that if an individual citizen makes a discovery, that's admissible in court. In general, I tend to agree. However, if someone enters a property with the intent of informing the police or other authority about anything in there, then they are acting in the capacity of infringing upon a person's privacy. A person's home should be inviolate, and this intent that I mentioned means that they are acting on the authority of those in power. It means this shouldn't be admissible in court, period.

The right to be secure in one's papers means that personal items, identity documents, correspondence, and other items that aren't really anyone else's business should be kept away from the eyes of those who don't really have a compelling need. The real sinker here is the implication of correspondence. In my estimation, all communications have the right to be free from interference and intrusion by those in power. You can't operate a business if nothing you do is private. You can't operate a political party if your competition is in power, particularly if you want to prevent those in power from overrunning the freedoms you enjoy. If you have a secret that you want to hold until an opportune time, it should be allowed under the Fourth Amendment, if you're one of the people to which the rights are ascribed.

The last part, the right to be secure in one's effects, is intended to be a catch-all. Today, personal effects include computer data, which could also be construed as being one's papers. The Founding Fathers wanted to ensure that people could pass along information freely. They also wanted to ensure that someone's personal effects couldn't be seized. With the USA-PATRIOT Act in full swing, seizures of small personal effects (like granny's nail clippers at an airport) became the norm. I suspect that in spite of that fact, the seizures in such cases are unreasonable.

An interesting quote to round some of the point up and link it to the next bit is given to us by Thomas Jefferson, one of our Founding Fathers, in 1787 (this would be 11 years after the signing of the Declaration of Independence, and shortly after the ratification of the US Constitution), in a letter to William Smith: "[W]hat country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance?"

In order to secure a free democracy, privacy is (as I've already said) fundamental. The government is worried about home-grown terrorists and those plotting against the administration in violent ways, it says, but the fact of the matter is that the more we impede individual rights to privacy, the more people find ways to circumvent any system put into place that violate it. By preserving the right to privacy in the first place, we effectively deny any refuge to those plotting violence for any time, except if they start acting secretively. The difference between maintaining privacy and being secretive is a semantic one, to be sure, but one which bears attention. I'll use the 9/11 attacks as an example of this principle.

On the morning on September 11th, 2001, six journalists approached President Bush's hotel in Florida. It was six in the morning, well before any of the attacks later in the day occurred. Nobody was aware that anything special was about to occur. These journalists claimed to have scheduled a poolside interview with President Bush, but they did not appear on the schedule for that day (nor any other). The journalists were denied access on that basis. The Secret Service, in protecting the privacy of the president from the media (who is very much in power, in spite of some opinions to the contrary), they ultimately saved his life. You see, these six journalists were all of Middle-Eastern descent, and they matched the descriptions of people who, only days before, has succeeded in assassinating a leader in Pakistan (if memory serves... I could be wrong on this, and I didn't look up my facts, because the location isn't really important to the point).

Later that day, 3,300 people died. This does not include the 200 who died in one embassy bombing a few years before, nor the 2,000 who died in airline terrorism in the previous decade, or the nearly-100 soldiers who had died in the line of duty, or any of the countless other civilians who have died for the cause of furthering terror in our homeland, or who were US citizen... and this doesn't include those who were citizens of other countries either. I'll put the number on it of 10,000 Americans dying by the directives of one terrorist leader. By comparison, Bush is indirectly responsible for the deaths of some 35,000 civilians, most of whom were killed accidentally because they didn't conform to rules we'd tried to notify everyone about. Our soldiers are fighting a war that had nothing to do with terrorism until we got involved.

But I digress. In the weeks and months that followed, it became clear that our very way of life is offensive to these people. They attacked us because their leader uses an unpopular religious philosophy to justify political activity. In the 1700's, we called such acts piracy, and the thought of the day was that we would simply pay them off and they'd leave us along. Except that they didn't. So, in 1799, we wiped out the Barbary Pirates. We didn't declare war. We didn't tell anyone or brag about it. We expressed sorrow that we had to do it, in fact. We didn't invoke any kind of rights or make any new laws. Congress didn't really get involved. President Jefferson simply declared them enemies of the state, and we went and sank their ships. Every one. We didn't stop to discuss terms of surrender. To this day, our policy is that we don't negotiate with terrorists. Terrorists only understand one language: terror. We kill terrorists, rather than negotiate. That's been the policy for 208 years as of this writing, and always has. The war we've been waging in the Middle East is a mockery of not only this policy, but of the entire system of democracy.

The only accomplishment of Bush's administration, really, is the significant erosion of civil rights by bullying his way through the courts and Congress to get his way. People just don't think that it's true, until they are personally affected. Bush did exactly what good old Ben Franklin warned us about: he traded our civil liberties for temporary measures designed to increase security. Today, our civil liberties are diminished, and the security promised by the USA-PATRIOT Act has yet to surface. We're at a constantly-high state of alert in our country. The real threat is not from al-Qaeda or even domestic terrorism: it's the man occupying the office of President of the United States. The Presidential office is one I respect and even uphold in my daily conversations with people. But I've lost significant respect for the person in that office. Shame on you, George!

If Bush had really been looking out for the security of our country, he would have given us measures to protect ourselves. He would not have decreased the ability of our population to speak to one another, but would instead have armed us with correct information about what was really happening. He was not interested in upholding democracy; he was interested only in his own bottom line.

There's another organization that operates like this: the RIAA. Their recent activities with Jammie Thomas show that they not only are really concerned with controlling the popular tastes. They aren't interested in truth, or justice, or even money. What they want is power. And powerful they are: they recently assisted in a bid to try to cut radio at the knees. Combined with an overabundant consolidation of radio networks, we're really at kind of a loss as to how to keep radio going unless we protect it. And radio stations are actually the basis of our telecommunications infrastructure, so their importance cannot be understated. But that's for another post.

The RIAA uses techniques that invade privacy. Cary Sherman, the president of the RIAA, claims that any idea that using software to intercept communications which are then used to secretly obtain the names of people who may never be notified so that they can prepare an adequate defense and preserve their own evidence, is "bizarre" (and that's a direct quote). The RIAA is in power. Heck, it's even on the right side of the law. But the one thing that they are lacking is a sense of ethical and dignified treatment of people. Their aggressive tactics only alienate them, and people already know that what they do isn't defending the artists' rights, because the companies associated with the RIAA typically take all rights to any work that the artist produces in exchange for marketing that to the public. And as we all know, the artists' main venue (the main way for artists to make money) is with public performance. If I see someone performing music or dance (or both) and I'm in a position to give them something of value, I give it. If it's a penny or a dollar, it doesn't matter: every little bit helps. I think I've given a twenty to a performing artist before.

But many people don't want performance. They want digitally-enhanced music that they aren't able to play without a license, to the point that if they're playing a car stereo too loudly they can be sued for public performance. Or if another artist has a take on the song, it cannot be performed publicly, because the song is copyrighted. Every time we sing "Happy Birthday," we infringe copyright. Such a standard inhibits our innovation through derivative works. It stifles our cultural pride. It reduces us. It is a direct threat on our freedom of thought and belief, and an attack on the Constitutionally-mandated Congressional duty to promote innovation. True, they are supposed to protect these works, but not at the cost of innovation.

But the most offensive portion of all is that if someone is playing a song too loudly on the stereo (a song, I might add, being broadcast freely by a radio station), then that person is also considered a copyright infringer. The sanctity of the home no longer exists under this new copyright regime. We come up short every time we try to fight it. Well, no more. Groups like the Pirate Party of the United States and the rapidly-growing media piracy movement have had enough. Many of us are also fighting back individually. People like Jammie Thomas are likely going to prove to be the rule and not the exception.

Pirates in history did evil things, like murder, rape, kidnapping, pillaging, plundering, ransoming, and enslaving people. Now pirates do even worse things, like copyright infringement.

Gimme a fucking break.

It's time for a mutiny. But unlike mutinies of the past, where people often got the idea of killing or dumping off the captain of the ship somewhere, this mutiny is one of democracy. And it takes votes. If you're not a registered voter, you're unwittingly working for the likes of the RIAA and the others in the copyright regime. Voter registration isn't hard. It's also not expensive, since a postage stamp is less than half a dollar to mail in a voter registration form to anywhere in the country. State voter registration is where this fight can and will be won. And it's the only way. We can't simply raid the RIAA's headquarters. We're not that kind of pirates.

We're computer geeks. We're artists. We're scholars. We're inventors. We use these things to keep ourselves separate. But in the end, the only thing linking us is the fact that we're sick to death of not being able to maintain the sanctity of our home and the privacy of our communications. If we don't exercise our rights within the law, then we shall find ourselves outlawed. The right of the people to be safe needs to exist again. And unless we hold the threat of removing those in power from those very comfortable and lofty seats, we are powerless to stop them.