Privacy Interrupted

…I’m fairly certain that if anyone else was monitoring my phone calls that would be cyber-stalking….

It is the undoubted Right and unalienable Priviledge of a Freeman not to be divested, or interrupted in the innocent use, of Life, Liberty or Property, but by Laws to which he has assented, either personally or by his Representatives…

It is against the Principle, not the Manner of its Exercise, that I contend. It would equally be an Insult to our Government, which ought to be a Government of Laws, as well as a Violation of the Rights of its Subjects; for the wisest and most discreet Man in the World, with a Party of armed Men at his Heels, without any Law, but that of the necessity of the Case, which cloaks as many Sins in Politics, as Charity is said to do in Religion…

We cannot foresee to what Lengths this dangerous Practice may extend, or where a Line can be drawn… In short, it is difficult to concieve of any arbitrary Act, which that prolific Mother of Tyranny may not breed, and when in Conjunction with Power, has not bred…

For my own Part I think it ought to be declared and sounded from one End of the State to the other. Let such oppressive Evils be examined not concealed.”

~ John Jay, 1778


When the Founding Fathers sent the Declaration of Independence to Great Britain in 1776, they attached a long list.  This list contained a record of all things the government of Britain had done that the colonists viewed as abuses of power.  Abuses the Founders and the colonists believed had only one purpose: “a design to reduce them under absolute Despotism”.  They took these actions and this list very seriously.  And for good reason – they could easily foresee the day when all of these things being arbitrarily enacted would lead to a government in which they’d have no voice at all.  A government where the people who made up the governed no longer mattered.  Their fears weren’t unfounded either; in other nations of their day, they could see the effects of the same kinds of policies and laws as the ones that Britain had started imposing.  They didn’t want to go down that path for themselves or their progeny.   So the Founders started a revolution, and then wrote a Constitution that would make it hard for their new form of government to do the same kinds of things.  But of course, that wasn’t enough.  Without constant vigilance, every type of government is susceptible to the same habit of overstepping its legal bounds.  Even the one the Founders created.  We have achieved untold technological progress since the days of our forefathers, but the same issues remain.  How far can the government go in interfering with the citizenry, even out of “necessity”?  Terrorism is certainly real, and the need to protect against it, essential, but I still cannot quite find the provision in the Constitution that allows the government to go completely beyond its delegated powers and the fundamental principles of our type of governance in the name of public safety.

And certainly, one can argue there are times when it may be necessary for the government to violate someone’s privacy.  They can do so under the standard rule of law.  Every subpoena for information is not inherently a depredation.  But when a court that is secret by its nature issues an order for the information of not a specific target, but millions of people, we have a serious problem.  The founding fathers experienced that problem themselves; after all another complaint from the Declaration of Independence is that “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.”  Nothing could be more foreign to the American Constitution than a secret court issuing a secret order for the private communications data of millions of citizens.  And as John Jay pointed out above, we cannot possibly foresee where the line will be drawn in the future if we allow such things to continue.  In the modern global era, how far does this go?  If you called someone, who called someone, who called someone else, who might have at one point have called someone who might be a terrorist, does the government get to monitor you?  And more frighteningly, the danger with even identifying groups as “terrorist” in inherent nature expounds.  If the government is allowed to assign labels without the consent of the governed that carry such heavy costs as constant surveillance, secret courts and arrests, and even the inability to board a plane, what happens when they start to label legitimate groups of citizens with the same brand?  It’s not an Orwellian fantasy.  We only have to look to the mess in Syria to see what happens when a government has an unfettered ability to lock people up at will because of who they talk to or what they say or to use monitoring as they please.  Syria’s current legal government labels those fighting against them as “terrorists” (and in fact, we label some of the groups fighting Syria’s government as the same).  Are they terrorists or revolutionaries?  And recently, our own government has found in other areas that deciding things based on a label doesn’t always work out so well.  Apparently, groups that carry the word “tea-party” cannot be automatically excluded from tax-exempt status.  But at the end of the day, only one thing really matters: that we either engage ourselves in these issues or we let the government decide them for us.  And I’m pretty sure the entire point of democracy is that we the people get to be the ones who decide.


Res Publica


Documentation without Representation:

John Jay’s Unpublished Papers, 1778 (emphasis in bold added by me)

Electronic Text Courtesy of the University of Chicago Press

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