I’ve been reading and listening to individual reactions to the Wiretap Scandal (which was recently reported to go a lot deeper than the White House initially disclosed). I want to address a particularly dangerous argument that people are trotting out yet again to justify the actions of a government that spies on its own citizens.
If you have nothing to hide, you have nothing to fear.
This argument has been around for a long, long time and it implies that:
- Citizens have no inherent right to privacy
- Surveillance only affects the guilty
Addressing the first implication, the closest the United States Constitution comes to identifying a right to privacy is in Amendment IV of the Bill of Rights:
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.
The key idea here is the government needs to have a compelling reason to look into your life and, in order to check abuse, two branches of government (Executive and Judicial) must be involved.
When discussing the Constitution, it is sometimes necessary to remind people of one incredibly important fact – the Constitution does not enumerate what citizens can do, it enumerates what the federal government can do. The Bill of Rights (the first 10 Amendments) specifically addresses some things that the federal government cannot do. What’s more, Amendment X states that any power not specified in the Constitution rests with the States or with the People.
Therefore, from the correct perspective, the question isn’t “Where in the Constitution does it state that citizens have a right to privacy?”, the question is “Where in the Constitution does it state that citizens do not?”
At the heart of our Constitution is the simple idea that people need protection from their own government. It’s an amazing, wonderfully subversive idea that is unfortunately not understood by most Americans. Digressing, I think it would be a very interesting experiment to reword and repackage our own Constitution as a Manifesto written by boogeyman Osama Bin Laden and then gauge public reaction to it.
To the second implication of the “if you have nothing to hide” argument, we all have something to hide. Embarrassing medical conditions, sexual proclivities, unpopular opinions, past lapses in judgement, financial information – all things we would prefer to disclose at our sole discretion. All things that a government with unchecked surveillance powers could disclose to discredit us or, by threat of disclosure, influence us.
The whole reason for checks and balances is because power corrupts. Why even debate the Patriot Act, why have a Foreign Intelligence Surveillance Court if the Executive branch can bypass laws and procedures at will? If the current president finds certain laws inconvenient, isn’t the solution to go through the process to change the laws, publicly and transparently? You know, like we were a representative democracy?
It is still in our best interests to be very, very careful about the laws we allow, especially when granting additional powers to the government. America’s legal history is littered with laws passed with specific intentions that are subsequently used to justify activities which the laws were never meant to address. The necessity for the careful wording of laws is not unlike the care one should take when making wishes to genies or monkey’s paws. As a recent Onion horoscope advised:
The wheelchair and the indignity will be bad enough, but the worst part is going to be explaining to your wife exactly what you said to the genie to make him take off your legs like that.
Supreme Court Justice Louis Brandeis (co-author of the seminal 1890 article The Right to Privacy) wrote in his famous Olmstead dissent (related to Elliott Ness and his Untouchables wiretapping bootleggers):
If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
The precedent we are about to set is incredibly important. If we say that this president is above the law, we are saying that all future presidents are, too. Pick your least favorite politician and then picture hume as president. Are you still okay with the president being above the law?