I haven’t made up my mind on the Edward Snowden affair, mostly because I still don’t know the answers to the following questions:
- Who owns the meta-data that Snowden released?
- How exactly did the NSA come to have access to that meta-data?
- Why specifically did the NSA feel the need to access the meta-data in the first place? (By “specifically,” I mean something more specific than “to combat terrorism via electronic surveillance“).
Assiduous newspaper reading and NPR-listening haven’t so far yielded answers to my questions (which is not to say that none exist or even that none are out there in the media). Andrew Ross Sorkin offers an astute discussion in Tuesday’s New York Times, which starts from the banal-sounding premise that “someone’s not telling the truth,” but offers some balanced suggestions about the various someones who might not be. Today’s Times has another one, “Secret Ruling Put Tech Firms in Data Bind,” which implicitly continues the narrative Sorkin began.
It’s worth remembering that consent legitimates a search, and that many of us might, via the small print in contracts we’ve signed, have consented to some of the NSA searches that are now causing such outrage. If that sounds implausible–how can one consent without knowing it?–ask yourself how much of the fine print of your credit card or bank agreement you’ve actually read, or how often you click “agree” to terms you’ve never read. Consent, to paraphrase Mies van der Rohe, is not so simple. It’s a further question whether, regardless of whether we have consented, we ought or ought not to. (I’m not saying that hypothetical consent binds; I’m saying that it’s worth thinking about what’s worth consenting to in the way of government surveillance for purposes of national security. It’s not obvious that one ought to reject every request for a government search simply because it is one.)
Anyway, I thought I’d highlight two essays of mine of general relevance to the Snowden affair, one dating to 2007, the other to 2012.
The 2007 essay was a critical review of Richard Posner‘s Not a Suicide Pact: The Constitution and National Emergency. Posner’s argument relies heavily on the supposed distinction between liberty and security (or liberty, security, and privacy) that has become a fixed part of our discourse. I hated his book, and took issue with his reliance on that distinction (or those distinctions). Ironically, however, the one thing in the book that I ended up agreeing with was his defense of electronic surveillance and of the secrecy of official government secrets. (I was reminded of the liberty/security dichotomy by a post I read the other day at Roderick Long’s website.)
The 2012 essay was a paper I gave on the Fourth Amendment for a conference of the Association for Core Texts and Courses, describing how I teach the Fourth Amendment in undergraduate settings. It’s intended as a contribution to public philosophy, not the philosophy of law, and deliberately abstracts from technical issues. Now, I think, is the time for the “individualist civic engagement” it calls for, bearing in mind that an individualist would want to be as secure from threats coming from Al Qaeda (et al) as she would threats from the NSA.
P.S., June 17: I basically agree with this piece in today’s New York Times by Bill Keller on “Living with the Surveillance State” (it really ought to have been called “Living with Surveillance”). One caveat: under the Open Fields doctrine in Fourth Amendment law, your backyard is not private in the sense relevant to Fourth Amendment searches. Incidentally, the supposed distinction between “open fields” and “curtilage” (in the Open Fields link above) sounds to my non-JD-trained ears like a classic case of discriminating in favor of suburban home owners against people who don’t own homes with “curtilage” (and therefore aren’t entitled to privacy protection on what is as much their property as is curtilage in the homeowner’s case). It’s not clear to me whether, on the Plain View doctrine, an officer can stand on the sidewalk and peer into your bedroom (if the bedroom is itself in plain view from the sidewalk). Consult your attorney on that one. But given the vague similarities of meta-data to what you see in an open field, perhaps we ought to be going back to basics and scrutinizing the Open Fields doctrine. As I say in the Fourth Amendment essay above, though this is ultimately a job for lawyers, non-lawyers can take the first, normatively basic steps.