In his book, The Republican Brain, Chris Mooney describes how there are certain types of issues in which Democrats mimic the illogical positions of most Republicans. He cites examples such as the Keystone Pipeline and fracking for natural gas. Both of these involve considerable data analysis. Sometimes Democrats distance themselves from the data because it is so complicated. Thereupon, they let their emotions guide their views, and in these cases like Keystone and fracking, they tend to favor what is perceived as preserving the environment.
It’s possible that another one of these issues is the NSA data collection, which was brought to our attention by Edward Snowden. The legality of what he did may never be determined, because to date he has not come back to the United States. The morality of what he did is certainly up for discussion.
But support for the legality of what the NSA is doing, as opposed to what Snowden did, got a boost on Friday, December 27, 2013. As CNN reported:
(CNN) — The National Security Agency notched a much-needed win in court, after a series of setbacks over the legality and even the usefulness of its massive data collection program.
A federal judge in New York ruled Friday that the National Security Agency’s bulk collection of data on nearly every phone call made in the United States is legal.
The ruling contrasts with another ruling last week by a federal judge in Washington, who called the same program “almost Orwellian” and likely unconstitutional.
I certainly don’t envy the judges who have rendered these decisions, as well as those on the Supreme Court who will ultimately decide the constitutionality (or their political preferences) regarding data that the NSA collects, and what the NSA does with it.
Progressives have generally lined up with the ACLU in wanting to curtail the extent of the data collection by the NSA. The arguments in favor of their position are both considerable and valid. The primary one is the right to privacy. While the word privacy does not occur even once in the Constitution, courts have historically recognized it as a legitimate right. Virtually all judgments in favor of privacy are based on the Fourth Amendment:
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.
It is not much of a stretch to extrapolate from here that electronic eavesdropping should require a warrant based on probable cause that some illegality was occurring. The right to privacy is not a luxury for a special class of people; it is a fundamental right for all of us.
We are left with the ongoing dilemma of what is more important: the right to privacy or the right to security. Neither is absolute, so we’re left to find a consensus between the two. It is presumptuous for any of us to say that we know with certainty where that line should be drawn.
I am certainly glad that Snowden provided us with a much more clear knowledge of what the NSA is actually doing. I’m also glad that a set of judges, rather than Congress, is going to set some guidelines as to how far the NSA can go. When they rule, it will not be the end of the discussion, but at least we’ll have rules that are much more reasonable than in the pre-Snowden era. Numerous questions will still remain, but hopefully we’ll be better prepared to try to answer them.