Privacy vs. Security

Privacy vs. Security

Two Views

Security v. Liberty

By Philip Verrecchia, Ph.D., YCP Associate Professor of Criminal Justice

Privacy, Security, and the Changing Nature of Technology

By Dennis M. Weiss, Ph.D., YCP Professor of Philosophy

Security v. Liberty

By Philip Verrecchia, Ph.D., YCP Associate Professor of Criminal Justice

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures, and in light of recent events regarding the National Security Agency’s (NSA) data mining program that seeks to identify terrorist networks through telephone and email records, many citizens have been questioning "what is considered unreasonable?" In United States v. Choate (1980), the United States 9th Circuit Court of Appeals ruled that the Postal Service may record what is written on the outside of an envelope (say, the addresses of sender and receiver) as there is no expectation of privacy in regard to this information. An envelope is placed in a public mailbox, picked up and read by a worker, read by workers sorting the mail, and read and delivered by another worker. However, what is in the letter (in other words, the inside of the envelope) is private information.

The United States Supreme Court in Smith v. Maryland (1979) made virtually the same point in regard to telephone records. The record of a telephone call (to whom a call is placed, from whom, and the length of the call) is not private information (think, the outside of the envelope) since it is shared with a third party (the telephone company), but the content of the conversation (think, the inside of the envelope) is private. This is what the NSA's data mining program does and there is nothing constitutionally disturbing about seeking to identify terrorists through telephone pattern recognition.

The other NSA program, PRISM, is designed to read the emails of non-U.S. citizens outside of the U.S. Reading other people's email (or mail) to protect its citizens is what governments do — it's called espionage — and should an Al-Qaeda member in Saudi Arabia email a potential recruit, our government would be derelict in its duty not to intercept it.

I think what bothers most people is not the constitutionality of these programs but the possibility of abuse and, considering the power of the NSA, any abuse would have drastic effects on our civil liberties. What would make most people, I believe, feel better is not abolishing such programs but instituting proper safeguards. If a newly employed contractor named Edward Snowden can access this information, the question is "how was this possible?" What these programs need are (1) stricter congressional oversight, (2) periodic legislative reauthorization, (3) judicial review, and (4) (as others have called for) independent outside review. These programs should be adopted to measure and examine the effectiveness of the safeguards vis-à-vis the external threat. In other words, a tightening of the programs.

Every spying program is a compromise between security and liberty, and never before was our sense of security shaken like it was on September 11, 2001. Yet our president, in his first inaugural address, said, "We reject as false the choice between our safety and our ideals." However, since then he has let these programs run and perhaps even expanded them. I, for one, like to think that quote was made by someone who did not have all of the facts, and was not aware, completely, of the terrorist threat that this country still faces (whether he was premature in declaring the war on terror over is the topic for another essay). Therefore, when the NSA's programs were laid bare for the world to see, our president said, "You can’t have 100 percent security and 100 percent privacy…We're going to have to make some choices as a society."

Indeed.

Privacy, Security, and the Changing Nature of Technology

By Dennis M. Weiss, Ph.D., YCP Professor of Philosophy

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.…They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

If you didn't know any better, you might suspect that these were recently crafted words responding to the debate over the disclosure by leaker Edward Snowden that the National Security Agency was engaged in a massive surveillance program. The passage actually comes from a 1928 Supreme Court dissenting opinion in Olmstead v. United States, by Louis Brandeis.

Olmstead was a bootlegger whose telephone had been tapped by Prohibition agents. While the majority of the court argued that telegraphic and telephonic messages enjoyed no special protection under the Fourth Amendment's prohibitions against unreasonable search and seizures, Brandeis was able to see how fundamentally the telephone was changing expectations of privacy. This was not Brandeis' first brush with new technology and the right to privacy. In 1890, he argued that the invention of photography and the flourishing of penny press newspapers were leading to the erosion of individual privacy. Brandeis' views ultimately carried the day, but not until 1967 when the Supreme Court overturned Olmstead and ruled that we had an expectation of privacy when talking on the telephone.

It's worth remembering this earlier debate over privacy and new technologies in the midst of the current debate sparked by Snowden's disclosures. As we increasingly live our lives online, posting, texting, and uploading, what are our expectations for privacy? Who controls and has access to all that digital information? Brandeis was aware more than a century ago that we can't take these questions for granted. As technology and social conditions evolve, we need to critically assess their impact on our expectations of and rights to privacy.

The era of digital communications and "Big Data" has transformed how we communicate and interact with one another and what the government (and corporations and marketers) can learn by examining that data. Complicating matters is the war on terror and the need to balance public safety with recognition of our privacy rights. U.S. data surveillance programs have been justified under the Protect America Act, passed in response to 9/11. These advances in technology and changing social conditions are fundamentally reshaping how we think about privacy and impacting the debate over privacy and national security. From email to cell phones, GPS to facial recognition software, not to mention Instagram and Pinterest, our increasingly digital lives entail that we now disclose a wealth of information about ourselves, our families, and our activities that once remained securely in the private realm. And of course terrorists can use that same technology to communicate and wreak havoc worldwide.

Wherever one stands on the important issue of balancing national security with privacy concerns, perhaps Edward Snowden has done us all a favor by reminding us that as we embrace the latest technological wonders, we must reflect on how they may be transforming our understanding of privacy, for better or for worse. Brandeis reminds us that we can't take privacy concerns for granted and that as both U.S. citizens and digital natives we must remain engaged in a vigorous debate over the meaning and nature of privacy in the 21st century.