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March 04, 2006

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Rich

Very nice post, Prof. Stone. I agree with your point so far as it goes, but I am curious about your view of other types of information aggregation by the government.

Assume that somebody within the hulking administrative apparatus of our federal government clips newspaper articles, talks with your friends and learns other things about you that you do not seek to keep private, but that aren't all currently located in one easy to find place or document. These pieces of information are then recorded somewhere by the government. Assuming that none of these pieces of information was obtained as the result of a Fourth Amendment violation, would you find the government's conduct impermissible, and why?

Geoffrey R. Stone

Great question, Rich. I would prohibit the government from gathering information about even the public activities of individuals if those activities are protected by the First Amendment -- unless the government has reasonable grounds to believe that the activities are related to unlawful conduct. This was essentially the rule Edward Levi put in place when he was Attorney General. This rule was eliminated by Attorney General Ashcroft.

In addition, I would prohibit the government from gathering information about individuals from third parties, if the individuals disclosed the information in the reasonable belief that it was confidential, unless the government has reasonable grounds to believe that the information is relevant to criminal conduct. This would cover, for example, financial information at banks, educational information at universities, and medical information at hospitals. I would do this by statute, but I would also support overruling the Court's decisions in the 1970s and 1980s that held that government efforts to obtain such information from banks, universities, and hospitals are not Fourth Amendment searches because they do not violate reasonable expectations of privacy. The Court predicated this doctrine on the notion that individuals have no reasonable expectations of privacy in these situations because they voluntarily disclosed the information to "strangers" who work at such institutions. That has always seemed to me a good example of bad legal reasoning.

Kimball Corson

Geof writes, "[W}hy should you care if the government looks over your shoulder?

My quick answer is because the government cannot be trusted to always act in my best interest, as opposed to its own. That is why we have our Bill of Rights. Further, our government, at its highest levels, is the result of an adversarial political process and so it has a natural list of adversaries or enemies, if you will. If that government declines in popularity or feels besieged or wishes to expand its power, those who run it are human enough and will feel the need to strike back where they can to protect themselves or their interests. Those who oppose that government or its actions who also have the potential to sway public opinion or effectively challenge those in power can become the primary targets. This is especially true if they are less visible, less empowered and not a part of the ‘loyal opposition,’ as it were. That can mean you, me and us, if we elect to become vociferous and start exercising some of our billed rights.

When dealing with opponents, the first sensible order of business is to gather intelligence on them, to know them and to learn their weaknesses and vulnerabilities. Enter stage right our Fourth Amendment protections, just when we need them. The problem with the NSA program is it can put such information directly in the hands of government without any protection of us or any independent oversight whatsoever. We are left to trust our government not to misuse that information. Yet trust is the core problem. And yet again, in a new context – this one -- the fox is left to guard the hen house. Clearly, this is a situation in need of repair.

Well empowered and independent oversight of the NSA process is imperative. In this context, it need not be warrant and probable caused based, but it definitely needs to be (1) independent and (2) have the effective power to say “no” or “stop” in defined circumstances and make that timely happen. I think that mechanism is fairly up for discussion here, but the NSA program as conceived is unlawful, I believe. FISA was a step in the right direction, but is proving to be too cumbersome. A streamlined, but effective review and stop process is needed, with the recognition that it will likely become the prototype for similar programs in the future.

I hope we can come up with such a process, because eavesdropping on our enemies is not only fun but it protects us as well. The trick is to not have us be treated like our enemies in the first instance.

Hugh Rice

That was a very eloquent post, but the problem can be captured much more concisely. In fact, one word goes a long way: Staatssicherheitsdienst.

ajtall

Professor Stone,

How would you feel about a national ID card system? Also, are you against "private government agents" - such as bank employees - who record any suspicious banking patterns and transactions of customers and then turn those over to federal regulators? Is that unconstitutional?

One other thing. Were you this outraged when the Clinton Administration obtained hundreds of FBI files on political opponents during the 1990's? And when the Clinton IRS audited several right-leaning foundations and think-tanks and people like Paula Jones, but no liberal organizations? Did you complain about that back then?

JackD

Another relevant phrase: 1984. As you suggest, Geoff, based on past experience, there is no reason to give the government the benefit of the doubt as to improper use of information gathered. The basic principle is that the government has no business sniffing around without a warrant. Our founders were clear about that.

gstone

To ajtall: I don't have strong views about a national ID card. In and of itself, I don't see it as especially problematic. I think bank employees and othes who receive information with a reasonable expectation of confidentiality should not report that information to the government unless there are reasonable grounds to believe that it is relevant to criminal conduct. As for consistency, this is an issue -- like freedom of speech -- on which I am quite confident I am consistent. I oppose such surveillance and misuse of private information regardless of which party is involved. I rarely took public positions on such issues during the later Reagan and the Clinton years, though, because as Dean and then Provost I thought it inadvisable for me to do so.

Rich

Thanks, Prof. Stone. I think many of the Court's "privacy" decisions often contradict one another, are internally inconsistent or both. Part of the problem is failing to identify what the underlying theory of privacy is.

If I may be permitted to ask a follow-up question, I'm not sure your answer to my initial question clued us into the principle on which you rely. Why is AG Levi's rule better than John Ashcroft's? Why are protected First Amendment activities outside the bounds of permissible governmental collection? My guess is that your theory is based on First Amendment breathing space and chilling concerns. Is this right?

Also, do you think there is, or should be, an implied fundamental right to the type of informational privacy protected by AG Levi's rule, or is it simply a matter of First Amendment jurisprudence?

Bob

Your premise that the Fourth Amendment should be understood as protecting “the people” not only against disruption, humiliation, and physical invasion of their property is incorrect. The was not the reason.

The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread INVASIONS OF PRIVACY experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

It had nothing to do with mere disruption or humiliation. It had everything to do with the fact that privacy is inherent to freedom.

Anon

Bob, your history is mainly correct, but you just say "invasion of privacy" as a conclusion without defining why it is a harm. Prof. Stone said why it was a harm- because of disruption and humiliation. Aren't you just talking past him?

Geoffrey Stone

Rich: As you surmise, I think Levi's rule is better because of the fragility of free speech. As an individual, you have little to gain by marching in a demonstration, signing a petition, or casting a ballot. The likelihood that your act will affect national policy is close to nil. Thus, you are easily "chilled" from engaging in this activity if you know there is a danger that you will be "punished" for it. Your decision not to participate may not in itself be important, but if lots of people are individually "chilled," that will mutiliate the thought process of the entire community. That's one reason why we have secret ballots, and it's similarly a reason why we should prohibit the government from gathering information about political activities (in the absence of probable cause, etc.) As for your second question, the First Amendment will do quite nicely.

Bob

Anon,

you said:

"your history is mainly correct, but you just say "invasion of privacy" as a conclusion without defining why it is a harm."

If you read my comment, I said that "privacy is inherent to freedom." Therefore, an invasion of privacy is also an invasion of freedom.

"Prof. Stone said why it was a harm- because of disruption and humiliation."

I stated in my previous comment that "disruption and humiliation" were not the reason that the 4th amendment was ratified. It was ratified to protect privacy, ergo freedom.

And just to be clear, the 4th amendment only protects against searches and seizures conducted by the government. Invasions of privacy by persons who are not state actors must be dealt with under private tort law.

Anon

Bob, not to get into a meaningless argument, but "freedom" is as non-defining and conclusive as privacy. Freedom is an abstract concept; why is it important? Privacy is an abstract concept; why is it important?

My guess is that you're arguing that freedom is an end in and of itself. But that proves too much. We don't, and weren't intended, to live in a libertarian paradise. Where are the lines? To determine this, we need a real reason, not just a conclusion. I think Prof. Stone did his best to answer that. Is it enough? I'm not sure, but it's definitely better and more thorough than your argument.

And the 4th Amendment covers state action, which is slightly larger than just the actions of government employees.

Bob

Anon,

It's very simple. An individual's privacy and freedom are his property, whether you regard them as abstract or not. My ideas are abstract also, but they are still my property, are they not? Government's role is to protect property rights, not violate them. As property, these rights are important.

And what's the difference between "state action" and the "actions of government employees?"

I also believe that many corporations are acting (intentionally or not) as state agents. When insurance, medical, and financial companies collect information about individuals and then provide (either voluntarily or not) same to the government, then I don't think they should be allowed to collect this private information either.

Kimball Corson

Geof writes:

"I would prohibit the government from gathering information about even the public activities of individuals if those activities are protected by the First Amendment -- unless the government has reasonable grounds to believe that the activities are related to unlawful conduct."

Why limit the concept to activities protectable by the First Amendment? Let me go a reasonable step further.

Maybe even our public activities -- to the extent we variously engage in them with the expectation of anonymity as a form of more limited privacy protection (typically deriving from the sheer numbers of us in various places) -- should be protected from governmental sifting and collection under the Fourth Amendment. In other words, the government has no business studying the activities of any one of us where there is any expectation of even some limited privacy based on whatever reason, absent probable cause.

Whenever we can reasonably expect not to have the pieces of our activities and lives put together and studied and so therefore expect some actual privacy in that regard, should not we be protected, especially from our government? Admittedly, this is a stretch for the Fourth Amendment, but does it not also need to grow as the patterns of our activities change and grow also in this postmodern age, especially if the core concept is privacy and the ancillary concept should be privacy from government.

Frederick Hamilton

Professor Stone,

I agree with the need to care very much about the NSA program. Our individual privacy should never be violated without "reasonable" cause. Acknowledging and accepting that is easy. What does not seem to be so easy is to acknowledge and accept that it is reasonable to spy (search) on an enemy we are at war with and one that to this day would like to inflict as much death and destruction on America and it's citizens as it can.

That is where the rubber meets the road. With proper safegaurds, I would hope it is possible to protect American citizen's right to privacy and to listen (if possible) to every phone call of a terrorist coming into and leaving the country.

Is it possible an ordinary, innocent American citizen might have his/her conversation intercepted by mistake? Of course. Even NSA professionals are human and capable of human error. What is not allowable is the use of any information inadvertently collected against said innocent American citizen used against him/her in any way. That should be very illegal indeed.

This discussion of the NSA terrorist intercept program is good and will have some good come out of it. On many fronts. Constitutional. Seperation of Powers. Privacy. War Powers. Et al. A civics lesson for Americans. Discussions that should take place more frequently than they do.

I don't think anyone is saying the government should not be listening in on the enemy. We simply want that eavesdropping to be done with a strong respect of innocent American citizen's constitutional right against unreasonable search and seizures.

I would hope at the end of the day all of this will get sorted out to most American's satisfaction and in a constituionally correct manner. I suspect it will.

The larger question of individual privacy as it relates to corporations, health care organizations, retail economic data and the use of all that data in todays age of immense computer power and the ability to slice and dice that data is a profound one indeed and should be the topic of new legislation to protect our individual privacy.

Kimball Corson

Frederick Hamilton writes:

"The larger question of individual privacy as it relates to corporations, health care organizations, retail economic data and the use of all that data in todays age of immense computer power and the ability to slice and dice that data is a profound one indeed and should be the topic of new legislation to protect our individual privacy."

Privacy concerns related to the gathering of our data by banks, health care organizations, retail agencies and various corporations is indeed an important issue, but having the information they gather then land in the hands of government is even more troubling and of greater concern, because those entities do not have the power or control over us that government does and so they cannot impact our individual lives as much as government can, with its capacity to pass laws, prosecute us and otherwise strike at us successfully, as individual citizens.

Too, those entities ought not to be acting as the constructive agents of government for that puts them in a conflict position in regard to the private information they gather from us for other ostensible purposes. Google is right to resist and MSN and Yahoo are wrong for caving in to the Justice Department's subpoenas.


Doug Hoffer

Professor Stone,

Do you think the Echelon program, as detailed in a 60 minutes piece towards the end of the Clinton administration, violates the 4th amendment?

In particular I'm refering to the fact that the program appears to have been designed to make it so that Great Britain could spy on U.S. citizens for our government and vice versa.

JohnLopresti

Server says post again:
_______________________
GStone proposes a nicely framed elemental series of propositions, and commenters have joined with much nuance, as the Bill of Rights is that ragged place in the original discursive Constitution where the broad concepts necessarily would have devolved into some tedious and thereby more tenuous and perhaps less enduring explication than the august main body of that document which is a founders' national consensus, a constitution.
Having parsed some very similar protoconcepts myself regarding what constitutes privacy, and the persistent puzzlement over why privacy is much less than explicit in the Bill of Rights, though easily derived, I offer the following observations. First, let us give credit to a very recent public interrogation among constitutional experts on this very matter, archived now for us serially at the Washington Post; consider the transcript of the JGRobertsJr hearing questioning in US Senate Judiciary Committee by Sen.Specter where early in the repartee several Roberts replies(*) depict his view of privacy as a blend of first + fourth amendments, the classic way to arrive at the construct.
Contextually, it is worthwhile to mention here a historical sense of the past forty years as electronic communications and secular art developed into what is the commonplace texture of modern media of all sorts, that many people developed a sense that while specifically not explicitly acceptable to us, it is factual to say electronic eavesdropping and now in modern times datamining, are happening, and apparently rather out of control; which is to avoid declaring in any manner that the activities are aligned with the constitution: which is where I agree with most thoughtful posters above: that in fact the activities are Not constitutional.
But, the essence is the sense of history: that the techniques have existed and have expanded, and have been variously extra-legal in some measure; indeed, the most recent completely thorough attempt by our elected national representatives to redefine and prescribe the limits of such electronic profiling was very long ago, at least if scaled against the rapidly moving gradient pace of modern telecommunications progress: 1978 was the year FISA was written, fully eighteen years before the Telecoms Act of 1996. To provide a yet farther bit of perspective: the Telecoms Act of 1996 assured us the telephone company would have to provide each American with full bandwidth of at least a minimum of 14.4 kbps; 1996 was the year when 28k modems came into vogue, but congress had to select some numeric for the tablet upon which the telecoms act was inscribed, and 14.4 was that cipher. As a sidelight, there are some locales still within continental US where the Baby Bell is providing an average bitrate of 16.5 kbps; you might discover the fact if your broadband link fails and your home workstation failsover to the dialup analog line.
Which is to say, FISA is undergoing timely rewrite.
But the substrate is this background since the one year self imposed silence of two large news organizations ended mid-December 2005 and the breadth of some ongoing datamining wiretap programs became known; congressional hearings ensued in open public session but predominantly in executive and secret session based upon principally the concurrency of the target subjects' being involved in an armed conflict with the US now.
Here is a more theoretical question which I would ask, additionally: how does one compare, for example, privacy of speech and all the fourth amendment privacies with privacy of such thought constructs as are commonly known as philosophy or religion and similar metaphysical systems of precepts by which people guide their personal activities. Certainly vast streams of Supreme Court opinions have etched the lines in fine filareed detail, and all are not clear yet, and given our dynamic civilization's pace of change, all the bounds shall never be clarified, though we will approach resolution to inform our decisionmaking. In fact, in the extreme, the following occurred to me in reading GStone's questions: that he might be expressing more some monastic rule which binds members of a retreat house than depicting the rights of individuals in their homes; not that the precepts need be specific to deacons and deaconesses in their private quarters, but merely observing that the degree of forthrighness which GStone's suggestions imply might find only a very few people in our civilization who correspond to that degree of personal integrity.

On a more mundane level, the quality of oversight which congress votes in the FISA modernization which it will produce this term, is the most important way to help put the snooping genie back in the amphora.
There is, in my mind, no way to justify government's dictating personal morality except where it affects the commons of our society; I think it was clearly the intention of the founders to acknowledge the importance of personal values closely and privately held, but to draw a bright line separating one's inner life from civil existence.
My own suspicion is our visiting this current adversarial crisis with the targets of the current wiretap will help progress insight into our foreign policy and science of history in ways which will redefine that elusive entity which is and should be our enduring right to privacy, despite how evasively it has been relegated to second-tier status in our public documents for centuries. Our founders were part of a long tradition of political theorists who recognized there needs to be a divorce between moralism and civilian politics; and though that boundary would be ever shifting, our jurisprudential construct had to permit adjudication of all matters which might tend to push invidious influences across that mutual threshold.
And, as GStone might have it, although in the abstract there is no fair way to deny that personal moral conduct, if quintessentially honest, would be beneficial to the civilization, were it to be datamined and wiretapped, exposed, and published to the government memory bank archive, I doubt that there are any in our secular society worthy of the trust which would be required to design the datamining templates and oversee their extent of permeation into our private lives.

It is interesting that the simple matter of privacy invokes so many fields of human endeavor, and that media apparently has encompassed all or most of these, compelling us to address our own social milieu and personal identity in a new way. Surely, congress is up to the task; that is why our electoral system is so cherished, that it provides us with spokespersons who respect the separations of the Bill of Rights which flexibly define our own private space vis a vis the commons in which we strive together to achieve civil governance.
__________
*Source: http://www.washingtonpost.com/wp-dyn/content/article/2005/09/13/AR2005091300876.html (as it appears html links are not displayed properly on this site's preview screen); this is the Roberts reply link.

Bob

The Feds want it both ways; to keep their secrets from the citizens and at the same time invade the privacy of the citizens to learn their secrets.

The State has rights to privacy that the citizens don't enjoy.

And the FOIA is a joke. How can state secrets that are over 30 years old still remain classified? IMO, the only possible reason is to protect those "guilty" (but powerful) individuals that are still living.

How about we adopt a FOIA for citizens where the Feds can't learn citizen's personal secrets until 30 years after the individual's death?

Martha June Luke

Thank you Stone and JohnLopresti. And please forgive me, I interpreted fourth amendment right bluntly as equal protection under the law and that certainly providing for judicial recourse with legal remedy including that for damages.

Being aware of technology being used to gain "vision" and certainly no regard for separation of one individual's self and discovery and removal of cell telephones during congressional meetings or during presence of press while electromagnetic detections in place from a life with an awareness by so many in a constituency base of 250 million without regard for that persons' pursuits and happiness except for the gain of those and the mass and no willingness to acknowledge pecuniary inequalities with continued requests in urgency for eleven to twelve years to congress, senate and presidency after intellect has been taken and spirit then violated with even more blatant criminal tresspassing to steal clothing and things while lack of regard for national security and secret clearance with the theft of such as well as international professional relationships names, addresses and numbers previously having been secured with U.S. state department approvals as well as an individual protected by all prior U.S. laws including that on basis of gender and race.

Any specific hulkism ocurred after January 1986 with Taft Hartley and Hatch Act needing immediate reconsideration and effectiveness.

If congress is heading in the right direction, they must acknowledge me at a local level and not continue to deny me while continued legislation occurrs.

I am who I am and I have discovered and continued to support my life with additional research pertitent to the above and my place in a natural and human environment and an economic United States of America.
It is ironic that John Ashcroft revoked Levi. It was at that time that I began seeking an executive order with direct conversations to Presidnent Bush's personal secretaries office in 2000 or 2002 and later understood investigations only for John Ashcroft to refer to the sky as a place and it being the ceiling while so many justices were no longer around and something about kitchen knives.

Refer to my other postings at U. Chicago's postings.

Kimball Corson

Martha J. Luke writes:

"Being aware of technology being used to gain "vision" and certainly no regard for separation of one individual's self and discovery and removal of cell telephones during congressional meetings or during presence of press while electromagnetic detections in place from a life with an awareness by so many in a constituency base of 250 million without regard for that persons' pursuits and happiness except for the gain of those and the mass and no willingness to acknowledge pecuniary inequalities with continued requests in urgency for eleven to twelve years to congress, senate and presidency after intellect has been taken and spirit then violated with even more blatant criminal trespassing to steal clothing and things while lack of regard for national security and secret clearance with the theft of such as well as international professional relationships names, addresses and numbers previously having been secured with U.S. state department approvals as well as an individual protected by all prior U.S. laws including that on basis of gender and race."

I respond:

Huh?? What??

(I did an interanl search for a period, but could not find any except as used with U.S.)

Kimball J. Corson

Bob is absolutely correct on the persistent misuse of secrecy and classified categorizations by our federal government of documents that should be available to the American public. For example, in some instances plans on where to bury natural gas branch lines in the U.S. that pass through residential areas have been deemed classified for the real purpose of preventing residents in the neighborhood from protesting until it was too late and a backhoe sat in their front yards. Those charged with internal review of documents not publicly available both here and in Britain privately or not say far, far too many are deemed secret and for many wrong purposes. Such misuse of the process also necessarily entails a considerable amount of dishonesty and deceit that is troubling also.

c&d

"Such methods of surveillance are undertaken in secret, so they are neither hassling nor humiliating."

The physical search of a home that does not leave any indication of its occurrence is clearly a search, but it would also not qualify as being hassling or humiliating under your definition. You differentiated secret physical searches on the ground that they implicates property rights. With the evolution of intellectual property law -- and the importance of intellectual property and knowledge in our current economy -- couldn't a person argue that our copyrightable conversations should be just as protected from recording as our front lawn is from trespass?

XXXXXXXXXXXXXXXXXX

I would also disagree with the statement that secret serveilence is "neither hassling nor humiliating".
Surreptitious surveillance, for some of the reasons you outline, is hassling and humiliating. Having the government look over my email is humiliating; like a youth having a babysitter after they enter high school. It is an imposition of power that demonstrates a lack of trust and unchallengeable control. You could argue a secret program would not be humiliating if it was never revealed, but how could secrecy be guaranteed for ever? And isn't doubt over whether secret programs exist a harm in itself? Having reason to believe someone might listen in changes behavior and, therefore, it is hassling.

Kimball Corson

NSA Surveillance: Why Should We Care?

The quick answer is, if you are a Senate Republican or live in the White House, you don’t!

USA Today explains that under a tentative deal between the White House and Republicans on the Senate Intelligence Committee, NSA could wiretap Americans without warrants for 45 days. (Unlike the common law dog, NSA gets 45 free bites.) If the administration then decided not to seek a court order, the attorney general would have to explain the reasons for not getting a warrant only to a new subcommittee acting in secret and consisting of seven (Republican?) senators. The wiretapping could then continue indefinitely without judicial oversight. Also, there would be no investigation into or consequences for NSA’s violations of FISA. Congress and Americans would be left in the dark about what has been going on.

What a white wash and laughable pretense at oversight! Note, there is no restraint at all on what can be done with the information obtained from such unlawful wiretapping. This is a white wash and a farce. The Fourth Amendment appears about to be ready to take a bullet to the head. Too, this is but the camel's nose under the tent. If we acquiesce, this structure could become the prototype for future electronic incursions on our rights.

Bush should be impeached for breaking his vow to uphold the Constitution.

Seems too much here that ‘all law is but politics.’

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