The Justice Chronicles Volume 11: Thoughts on Edward Snowden, The NSA, and the 4th Amendment

Earlier this month Edward Snowden, an employee of Booz Allen Hamilton leaked information that the National Security Agency has been collecting phone records of US citizens. It’s been a huge story and awakened a debate on privacy, security, and the 4th Amendment.

Unfortunately any story that hits the 24 hour news cycle loses all nuance and much its accuracy; we should begin with a few of the facts of the case. Here is what I’ve gleaned:

The NSA (National Security Agency) is tasked with protecting our nation and citizens from people and organizations who wish to harm us. They are secret by nature and work in the shadows; most of us don’t know what they do. The information age, global connectedness, and the internet has led to an explosion in both the ability to harm us and the ability of the agency to find out what they are doing. The NSA has worked hard to collect information, not only by people who mean us harm, but information that we might need later.

Earlier this month Edward Snowden leaked to the media the fact that the NSA is collecting phone records of nearly every call made here. If you think about all the calls you’ve made in the last month, multiplied by the 314,000,000 people who live here, it’s a large number. To be clear, they haven’t been listening in on every (or any) conversation. They’ve been collecting the data on the calls that we’ve made: not what we’ve said but who we’ve called and how long we’ve talked. They can’t access any of this information without a warrant from something called the “Foreign Intelligence Surveillance Court” (FISA).

Edward Snowden is in legal trouble because the Obama administration claims that by leaking this information he has committed espionage, normally defined as giving aid and comfort to the enemy. In other words, by telling us that the NSA is collecting this information we are “tipping our hand” and allowing our enemies to find other ways to harm us. This is the part I’m finding troubling.

I have to confess a bias here: I look at the 4th Amendment the way the NRA looks at the 2nd Amendment. The 4th Amendment says this:

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.

When this amendment was written there was a limited ability to search and seize. That ability has dramatically changed with technology. For example, in the 19th Century the invention of the telegraph and telephone allowed for private communications to travel from one place to another. The courts could have easily found that the 4th Amendment applied only to the physical limits of houses, papers, and effects, but it didn’t. Law enforcement still needs a search warrant to tap telephone calls.

But what about now? What limits do we have on tracking our cell phone calls, emails, or social media platforms? Are we in the 19th Century where your telephone is part of your house or the 21st Century where even your trip to 7 Eleven is videotaped?

In my role as a hospice chaplain I am in public view a good part of the day. My 2006 Toyota Prius has an “event data recorder” that records (among other things) my speed, steering, and whether or not I’m wearing my seatbelt. Since I have a GPS my location is also recorded. Several of my patients live in gated communities or other places that have video surveillance. Most of the places where I stop for lunch or a soda also videotape. Anytime I get cash out of at ATM or use my credit card, that is recorded. During all this time I’m either alone or with people who don’t know me, and I carry with me the presumption of privacy.

But is that presumption is false? The government has the ability (though the court system) to look at all of this information. If all this tracking comes under the same eyes, my life would not be far off from Winston Smith in 1984 by George Orwell.

I think we can all agree that there needs to be limits on what can be revealed on us, but conversations about these limits needs to be public.

This is the point where I find myself in agreement with Mr. Snowden. We cannot have a dialogue about the limits of the 4th Amendment if we don’t know what the rules are. President Obama wants to prosecute him, claiming that revealing this information tips off our enemies about what kind of information they gather.

This type of argument is not new. When the Bush administration was trying to convince us that we needed to go to war against Iraq, they claimed we knew the location and existence of weapons of mass destruction. How did the administration know this? They couldn’t tell us because that information would tip the hand. Later, when we all learned that these weapons didn’t exist, many of us believed that they didn’t show us the evidence because they simply didn’t have it. Had we known the evidence either didn’t exist, or was unreliable, we would not have favored going to war.

Most people don’t feel as strongly about the 4th Amendment as I do. There is often the presumption that if you have nothing to hide, you have nothing to fear, and government surveillance in the interest of catching bad guys is always allowed. I disagree, and I believe the framers of the Constitution did too. They knew this amendment would make prosecution of criminals more difficult (as do jury trials and the prohibition to compel someone to testify against himself), but they thought it was worth it. So do I.

It's Good To Be the King

I live in La Jolla, California; it’s a neighborhood on the northern edge of San Diego and it’s a nice place to live. It’s also fairly affluent (Mitt Romney has a house about 3 miles away) and I’m amused by the number of people who assume we’re rich because we live here. We regularly get mailings from financial planners and investment firms who want to manage our portfolios “over $1,000,000.” Yeah, right.

On the plus side we also get letters promising gifts if we do simple things. A few years ago we were promised a $150 gift certificate to Smith and Wollensky Restaurant if I test drove a Maserati at a local dealership. It was completely worth it, but $150.00 almost covered lunch.

In April I got a letter that said if I test drove a Lincoln I could get a free pair of Maui Jim sunglasses. These things always sound too good to be true, but I took the form down to the local dealership and got the form signed. I sent it in and today I got my free pair of glasses.

They retail for $269.00. Yeah, no kidding. To be fair they are much better than my bargain basement glasses that I don’t wear much because I have a hard time reading my car dashboard. I’m not sure they’re worth a month’s wages at WalMart but I’m keeping them for now. I only hope I don’t get addicted to them and break them in a few months. We’ll see.