Background Considerations
Benjamin Franklin, one of our primary Founders: Those who sacrifice liberty for security deserve neither.
Fourth Amendment to the US Constitution, often quoted as the Constitutional basis for individual privacy: 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.
SCOTUS Judge Antonin Scalia in a 20 Jul 2012 interview with Chris Wallace on Fox News Sunday: There is no right to privacy (i.e., under the Constitution). No generalized right to privacy.
Justice Scalia made the remark in reference to a 1965 SCOTUS ruling (7 to 2) that struck down a Connecticut law restricting access of married couples to birth control. SCOTUS ruled such laws violate the Constitutional right to privacy.
An aside: I wonder if this ruling represents as an example of using bad law, or at least a bad interpretation of law, for a worthy purpose?
SCOTUS has ruled that law enforcement agencies may record, without warrants: (1) what is written on the outside of a snail mail envelope [e.g., names and addresses] and (2) information about the external parameters of a telephone conversation [e.g., names of persons making and receiving calls, and duration of calls]. Warrants are required to examine the contents of snail mail envelopes and telephone calls. Apparently, the Federal government's data mining programs use (1) and (2) by extrapolation to record similar "outside" information for Internet activity by American citizens and E-mails sent to, and/or received by American citizens.
The Federal Government's data mining programs (e.g., PRISM); therefore, arguably appear legal under the Constitution. Legality, of course, is not always equivalent to wise.
We need to keep in mind that the US Constitution applies only to US citizens and, perhaps, legal alien residents. I am unclear if the Constitution applies to American citizens voluntarily living abroad - in contrast to members of our armed forces.
PROBLEMATIC CONSIDERATIONS
From the beginning of the Internet and E-mail, I've assumed and operated on the presumption that my information (e.g., sites visited, searches conducted, and content of E-mails) cannot remain inviolate with respect to privacy. Early on I became aware of this problem as a result of some of my "unsavory" E-mails becoming public.
Much of the criticism of the data mining seems to focus on the following issues: (1) misunderstandings about how the programs were authorized through our elected representatives and the Federal courts, (2) the broad and deep scope of the programs, (3) lack of clarity concerning privacy rights, (4) questions about the efficacy of the programs in maintaining our national security, [i.e., have the programs prevented attacks and are they likely to prevent future attacks?], (5) lack of trust in Federal law agencies and (6) linkage of targeted assassinations [e.g, through drones) with the data mining programs.
Issue (1) seems straightforward - there should be no misunderstanding about the legality of the data mining programs based upon previous SCOTUS rulings and constitutionally sanctioned legislative/executive actions. Regrettably, many (most?) citizens seem uninformed about the roles the three branches of the Federal government play in the processes of passing and executing constitutionally valid laws. Even more regrettable are the crocodile tears some of our Senators and Representatives shed by claiming they were unaware of the extent of the programs. The entire body of Senators and Representatives appointed a subset of themselves to "monitor" the programs in an attempt to maintain both control and security of the programs. All Senators and Representatives have had the opportunity for briefings by the subset in closed sessions.
Issue (2) relates to the creepiness factor. Only a relatively few technocrats had any idea about how constantly evolving technology allowed the massive data mining. The scope of the programs, even if legal, seems creepy and make us think of a "Brave New World" situation: Can Big Brother reading our thoughts be next?
Issue (3) comes about because most citizens, and apparently some elected representatives, have incomplete - even erroneous - ideas about privacy that exists within and outside the Constitution. How many citizens know about the constitutionally-sanctioned (as defined by SCOTUS) provisions allowing law enforcement agencies to record external information from snail mail, telephone conversations, Internet searches, and E-mail transmissions?
Issue (4), the efficacy of the data mining programs, remains an open question for many citizens. I don't see how the people who operate the systems can reveal their actual effectiveness to the general population without jeopardizing national security. Yes, the results of the programs presumably will be revealed in some detail this week to a subset of Senators and Representatives in closed session. All citizens will then have the opportunity to obtain generalized information on the efficacy. The problem then morphs to Issue (5).
Issue 5, the level of trust from the American citizenry appears to be at an all time low, from both liberals and conservatives. I believe our Founders had a healthy skepticism concerning trust in governments, a skepticism embedded in the Constitution. Can we think of any Federal entity that the great majority of citizens would trust in today's highly charged and polarized political atmosphere? The abundance of conspiracy theorists seems to shoot down the idea of trust. Thus, we find ourselves in the following situation: Suppose NSA were to reveal the details of the data mining programs, including targets and successes/failures - without somehow jeopardizing perceived national security: How many of us would then believe the truth of the revelations?
Issue 6, the linkage between targeted assassinations and data mining, enormously increases the potential for governmental abuses. In this context, I'm perfectly willing to accept that persons thought to be dangerous to our national security - both actually and presumptively - have been eliminated. Some well-meaning and astute persons, however, believe this issue represents the primary danger of the NSA programs: We target, and kill, some persons based on presumptive, not actual, threats. Yes, we've killed some individuals who have perpetuated actual hostile actions against us. Osama bin Laden immediately comes to mind.
The extreme discomfort for some citizens arises from the targeting of persons who only represent perceived threats. The discomfort arises because we presumably don't prosecute, much imprison and/or execute, individuals on the basis of potential dangerous actions. But we engage in such activity on a daily basis: We confine individuals who make creditable terrorist threats as well as persons who, because of mental illness, represent threats to themselves and others. Further, try making a creditable threat to kill POTUS Obama and see what happens.
Compounding the situation is the actual killing of American citizens on foreign "battlefields" and the potential for killing American citizens on American soil without the benefit of a trial or other open court actions. Can we argue that such eliminations are tantamount to the lawful killing of an armed individual who poses a threat against another citizen? Perhaps.
We need to have a full, frank, free, and open discussion in this country, not limited to the above issues but, more importantly, concerning how much civil liberty we are willing to sacrifice for national security? We should keep in mind that national security and individual security are different sides of the same coin.
I suspect we'll have a lot of strum and dang in the near future but very little limitation of the data mining and assassination programs will take place. Nevertheless, we should have the discussion, hopefully without the overheated rhetoric from certain members of Congress and bloviators.
The data mining programs, if left substantially in place, will become even more extensive and effective in identifying potential threats. Even so, I'm not particularly concerned about the civil liberty implications - if the programs are effectively and efficiently monitored to prevent abuse.
One potential abuse, however, bothers me greatly: Presumably, the internal content of E-mails caught up in the data mining are placed in an electronic "lock box" that can be accessed only upon execution of a valid warrant through the FISA court. Can this lock box be kept safe from hackers? Can we guarantee that no governmental official will resist the temptation to look within the lock box for personal and political reasons? Think POTUS Nixon's enemies list and the IRS over zealous scrutiny of Tea Party-linked applications.
Justice Scalia made the remark in reference to a 1965 SCOTUS ruling (7 to 2) that struck down a Connecticut law restricting access of married couples to birth control. SCOTUS ruled such laws violate the Constitutional right to privacy.
An aside: I wonder if this ruling represents as an example of using bad law, or at least a bad interpretation of law, for a worthy purpose?
SCOTUS has ruled that law enforcement agencies may record, without warrants: (1) what is written on the outside of a snail mail envelope [e.g., names and addresses] and (2) information about the external parameters of a telephone conversation [e.g., names of persons making and receiving calls, and duration of calls]. Warrants are required to examine the contents of snail mail envelopes and telephone calls. Apparently, the Federal government's data mining programs use (1) and (2) by extrapolation to record similar "outside" information for Internet activity by American citizens and E-mails sent to, and/or received by American citizens.
The Federal Government's data mining programs (e.g., PRISM); therefore, arguably appear legal under the Constitution. Legality, of course, is not always equivalent to wise.
We need to keep in mind that the US Constitution applies only to US citizens and, perhaps, legal alien residents. I am unclear if the Constitution applies to American citizens voluntarily living abroad - in contrast to members of our armed forces.
PROBLEMATIC CONSIDERATIONS
From the beginning of the Internet and E-mail, I've assumed and operated on the presumption that my information (e.g., sites visited, searches conducted, and content of E-mails) cannot remain inviolate with respect to privacy. Early on I became aware of this problem as a result of some of my "unsavory" E-mails becoming public.
Much of the criticism of the data mining seems to focus on the following issues: (1) misunderstandings about how the programs were authorized through our elected representatives and the Federal courts, (2) the broad and deep scope of the programs, (3) lack of clarity concerning privacy rights, (4) questions about the efficacy of the programs in maintaining our national security, [i.e., have the programs prevented attacks and are they likely to prevent future attacks?], (5) lack of trust in Federal law agencies and (6) linkage of targeted assassinations [e.g, through drones) with the data mining programs.
Issue (1) seems straightforward - there should be no misunderstanding about the legality of the data mining programs based upon previous SCOTUS rulings and constitutionally sanctioned legislative/executive actions. Regrettably, many (most?) citizens seem uninformed about the roles the three branches of the Federal government play in the processes of passing and executing constitutionally valid laws. Even more regrettable are the crocodile tears some of our Senators and Representatives shed by claiming they were unaware of the extent of the programs. The entire body of Senators and Representatives appointed a subset of themselves to "monitor" the programs in an attempt to maintain both control and security of the programs. All Senators and Representatives have had the opportunity for briefings by the subset in closed sessions.
Issue (2) relates to the creepiness factor. Only a relatively few technocrats had any idea about how constantly evolving technology allowed the massive data mining. The scope of the programs, even if legal, seems creepy and make us think of a "Brave New World" situation: Can Big Brother reading our thoughts be next?
Issue (3) comes about because most citizens, and apparently some elected representatives, have incomplete - even erroneous - ideas about privacy that exists within and outside the Constitution. How many citizens know about the constitutionally-sanctioned (as defined by SCOTUS) provisions allowing law enforcement agencies to record external information from snail mail, telephone conversations, Internet searches, and E-mail transmissions?
Issue (4), the efficacy of the data mining programs, remains an open question for many citizens. I don't see how the people who operate the systems can reveal their actual effectiveness to the general population without jeopardizing national security. Yes, the results of the programs presumably will be revealed in some detail this week to a subset of Senators and Representatives in closed session. All citizens will then have the opportunity to obtain generalized information on the efficacy. The problem then morphs to Issue (5).
Issue 5, the level of trust from the American citizenry appears to be at an all time low, from both liberals and conservatives. I believe our Founders had a healthy skepticism concerning trust in governments, a skepticism embedded in the Constitution. Can we think of any Federal entity that the great majority of citizens would trust in today's highly charged and polarized political atmosphere? The abundance of conspiracy theorists seems to shoot down the idea of trust. Thus, we find ourselves in the following situation: Suppose NSA were to reveal the details of the data mining programs, including targets and successes/failures - without somehow jeopardizing perceived national security: How many of us would then believe the truth of the revelations?
Issue 6, the linkage between targeted assassinations and data mining, enormously increases the potential for governmental abuses. In this context, I'm perfectly willing to accept that persons thought to be dangerous to our national security - both actually and presumptively - have been eliminated. Some well-meaning and astute persons, however, believe this issue represents the primary danger of the NSA programs: We target, and kill, some persons based on presumptive, not actual, threats. Yes, we've killed some individuals who have perpetuated actual hostile actions against us. Osama bin Laden immediately comes to mind.
The extreme discomfort for some citizens arises from the targeting of persons who only represent perceived threats. The discomfort arises because we presumably don't prosecute, much imprison and/or execute, individuals on the basis of potential dangerous actions. But we engage in such activity on a daily basis: We confine individuals who make creditable terrorist threats as well as persons who, because of mental illness, represent threats to themselves and others. Further, try making a creditable threat to kill POTUS Obama and see what happens.
Compounding the situation is the actual killing of American citizens on foreign "battlefields" and the potential for killing American citizens on American soil without the benefit of a trial or other open court actions. Can we argue that such eliminations are tantamount to the lawful killing of an armed individual who poses a threat against another citizen? Perhaps.
We need to have a full, frank, free, and open discussion in this country, not limited to the above issues but, more importantly, concerning how much civil liberty we are willing to sacrifice for national security? We should keep in mind that national security and individual security are different sides of the same coin.
I suspect we'll have a lot of strum and dang in the near future but very little limitation of the data mining and assassination programs will take place. Nevertheless, we should have the discussion, hopefully without the overheated rhetoric from certain members of Congress and bloviators.
The data mining programs, if left substantially in place, will become even more extensive and effective in identifying potential threats. Even so, I'm not particularly concerned about the civil liberty implications - if the programs are effectively and efficiently monitored to prevent abuse.
One potential abuse, however, bothers me greatly: Presumably, the internal content of E-mails caught up in the data mining are placed in an electronic "lock box" that can be accessed only upon execution of a valid warrant through the FISA court. Can this lock box be kept safe from hackers? Can we guarantee that no governmental official will resist the temptation to look within the lock box for personal and political reasons? Think POTUS Nixon's enemies list and the IRS over zealous scrutiny of Tea Party-linked applications.
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