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June 21, 2013


The following is a look at how politicians may handle the most important constitutional issue we have faced since 1861 and the onset of the Civil War, and it had to happen – sooner or later. The unstoppable force has finally collided with the immovable object. The theoretical has become a reality.

Technology has afforded us opportunities to look into the private affairs not only of American citizenry, but those of the rest of the world as well, including but not limited to bedrooms, corporate boardrooms, government offices cloaked in secrecy etc.  People with privacy concerns are flooding the internet and newspapers with their objections, but such Fourth Amendment concerns are offset by national security “need to know” letters to the editors and other such commentary. The Fourth Amendment is about to take over the Second Amendment as an object for public discussion as gun control becomes a trivial issue when compared to total loss of privacy and the real potential for an overreaching government. If you think gun control is a problem, read 1984 (first published in 1949), a chilling reminder of what totalitarianism looks like when played out in the real world.

The potential for a 1984 society has arrived, but, so far, our dictators (unlike those in 1984) have been beneficent. We have no assurance that they will remain that way, and we certainly do not have any such assurance that new leadership will not become 1984 dictatorial leaders, or, even if American political leaders were to remain beneficent with their newly-found ability to invade privacy, whether foreign countries (who also have or will shortly have such technology), will not spawn new Caesars and Hitlers en route to 1984 look-alike regimes. The genie is out of the bottle, and we will never be able to put it back into the bottle, so the question is not how you make the buggy whip relevant; the question is how you handle the new horseless carriage and its impact (so to speak).

We are told that new and better means of total invasion of privacy is in the works, and at an accelerated rate, so the pressure is on to fashion a quick democratic response to the implications of such runaway technology; otherwise by (perhaps) 2049 (the 100th anniversary of 1984’s publication), 1984 (or worse) will have arrived globally and will then be a fait accompli. Many commentators have 1984 arriving long before my suggested date, and in view of the accelerated means of coming up with new and better ways of invading the privacy of everyone, every business, every confessional, every trade and industrial secret, they may be right.

Is 1984 en route? Probably. Can it be derailed? Yes, but not by letters to the editor and the Pavlovian conditioned responses such as those of the libertarian bent (now a substantial portion of the Republican party). These people file their suits, show up on Sunday morning TV to vent their wrath at the current administration, and in general talk about our loss of privacy under the Fourth Amendment, how we are “all watched over by machines of loving grace,” or “with technology racing forward and more data being siphoned into its servers, the government will enjoy extraordinary, potentially tyrannical powers, “etc.

This all sounds good, but it was technology that brought quick solution to the Boston bombing and we are told by the NSA’s head that our invasions of the privacy of would-be killers has prevented fifty such bombings in America. Thus, in policy terms, the unstoppable has met the immovable, so now what?

This is not the first time an administration has put national security over constitutional rights. Our revered Lincoln approved the suspension of the constitutional right of a writ of habeas corpus during the Civil War. I don’t even want to imagine George Bush’s constitutional excesses during the Iraqi-Afghanistan disaster. So far, all such possible dictatorial and illegal decisions of his are secret, and maybe it’s just as well, given his weakness for neocon influence over policy at the time.

We now have had admissions from the NSA that drones are used domestically, presumably to ferret out would-be prospective bombers among us. That part sounds good until you see that the use of such vehicles could be subject to major abuse by this or future governments both here and abroad for other purposes (read tax, political etc.).

The ultimate question may by 2049 not be what we are arguing about today, i.e., Fourth Amendment privacy concerns vs. national security concerns. It may have been a choice of Big Brother and an old-fashioned adherence to the Fourth Amendment, where evidence of wrong-doing is required for an arrest and grand jury indictment, and more importantly, where we could require that evidence gathered by technological means as above described is NOT admissible (with all due respect to admission of genetic markers for identity, presence at the scene of a crime, establishment of paternity etc.).

If we citizens with our fear of terrorism are willing to give up our constitutional rights, then we will have given the state rights it previously did not have, rights that are certain to be expanded under future case law, rights that will prove to be quaint artifacts in constitutional history, and the loss of which will make us vulnerable to the potential excesses of some future (if not the current) administration.

Perhaps worse, by trading off our Fourth Amendment rights (via either apathy or denial), we will have established the legal precedent for such a trade-off, so where does this lead in the future for a trade-off between FIRST Amendment rights and some claimed overriding public concern? Given time and the political machinations of some who are more interested in money and power than America’s future, we could be trading off more than just privacy rights; speech, press, religion and a host of other constitutionally-guaranteed rights may be up for grabs as well (thanks to our having established the antecedent for such future findings).

Making evidence inadmissible at trial when gathered by the technological means above-described is a start, but we need to slow the flow of such unconstitutional invasions of privacy generally in order to confront overzealous prosecution and let all know that we will not sacrifice our democratic society for anything or anybody, whatever the concern. We bled to establish democracy; we will bleed to defend it.

Are there risks?  Of course; there are risks either way, and I have not personally decided which side of the fence I will finally favor at this juncture, but I think we had ought to make some of the fruits of overzealous prosecution unavailable at trial during the interim, thereby letting government know that we are not asleep and that there are limits (not to burgeoning technology but rather its application in other sensitive areas currently protected by the Constitution).

As Chris Hughes in commented: “Humans create technology. Humans can control it.” Our task is this: We must fight unconstitutional intrusion AND effectively fight terrorism.  GERALD  E


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