Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

March 31, 2011

Violating Rights: Out of Sight, Out of Mind

By David K. Shipler

During research for my book The Rights of the People, I asked a communications class at Stetson University to write their answers to a few questions, including whether “you expect that your e-mails, phone calls, letters, checking accounts, conversations in your rooms, credit card use, computer hard drive, personal items in your home, etc. will be, or should be, beyond the reach of government investigators without judicial authorization.”

The question has important legal implications, because the Supreme Court has ruled that unless someone has “an expectation of privacy,” the Fourth Amendment usually does not apply. Only where such expectation exists (as defined in various court opinions) does the government have to get a warrant based on probable cause to believe that particular evidence of a crime will be discovered in a certain place.

Most of the students were adamant about their privacy, others were reluctantly resigned to losing it, and a few endorsed the surveillance for the sake of security. But one response jumped out at me, from a young woman who wrote:

“Do I want the government breaking down my doors to interrogate me? Of course not. Something in the middle, however, is not outrageous for our protection. I wouldn’t mind if they peeked into my life as long as I don’t notice them there.”

She captured perfectly the warring attitudes coexisting in the United States, especially since 9/11. Violations of the Bill of Rights are considered outrageous when they are obvious and physical, but when they are out of sight, they are out of mind. That leaves government with latitude to do invisible electronic searches without generating much public opposition. It may also contribute to a declining “expectation of privacy” and thereby erode Fourth Amendment protections in the courts.

The problem is one of perception, as illustrated neatly by Publishers Weekly, which called electronic surveillance “less intrusive” than the pedestrian frisks by policemen looking for guns. Those visible pat-downs were “shocking,” it said in a brief review of The Rights of the People. But if investigators without showing probable cause can wire your bedroom for sound, copy your daughter’s hard drive, tape your phone conversations, read your e-mail, monitor your Web browsing, collect a decade of your travel and medical and financial records, and follow your location through your cell phone or a GPS device planted secretly on your car, how is that “less intrusive?”

Most of those steps were taken against the innocent lawyer Brandon Mayfield, who came under secret surveillance in Oregon after the FBI lab misidentified a fingerprint from the 2004 Madrid train bombing as belonging to him. Courtesy of the Patriot Act’s amendments to the Foreign Intelligence Surveillance Act, FBI agents entered his house and law office surreptitiously. His phones were tapped; his intimate and professional conversations at home and work were monitored with hidden microphones; and his private papers and his clients’ privileged files were copied. Agents also copied three computer hard drives and one external drive, took ten DNA samples on cotton swabs, collected six cigarette butts to compare the DNA with that found in a van used by the terrorists, and took 335 digital photographs of his house and office. So much for the argument that you have nothing to fear if you’ve done nothing wrong.

I’ll bet, if offered a choice between all that and a one-time frisk, Mayfield would have picked the pat-down.

We face a serious risk of complacency. I won’t be surprised to see it expressed in reaction to my new book, from Americans who mock other Americans’ warnings about the erosion of certain civil liberties. Questions on the topic do not get asked during political campaigns, not even by reporters interviewing candidates or moderating their debates. Polls show a lack of concern. The Tea Party movement, so vividly anti-big government, has displayed only marginal interest in government’s invasions of the Fourth Amendment. Twenty-six Republican House members did vote in February against renewing several expiring provisions of the Patriot Act; otherwise, conservatives have been inconsistent, opposing big government’s social programs but not its surveillance programs.

The trouble is, if that Stetson student's view prevails, if we cannot mobilize sufficient concern about what we cannot see, then the invisible surveillance will continue undermining the Fourth Amendment without the resistance that is always required to preserve individual rights.

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