Privacy is Dead, Let’s Call the Whole Fourth Amendment Thing Off…and While We’re at it, Lose the First One Too

As a young man, I recall sharing with friends that while I held few principles (moral or otherwise), the few I held were dear to me.  In other words, I didn’t bother encumbering myself with lots of principles that I could never live up to.  This didn’t mean acting immorally, it just meant not taking absolute positions over moral or social issues since there were lots of imaginable circumstances under which I might not live up to such high ideals.  Perhaps it was my disdain for hypocrisy or simply being lazy about having to remember so many principles, but whatever it was, it made me feel better to come to terms with my humanity as someone with failings who wasn’t going to espouse moral superiority, especially on issues that I could imagine not living up to.

Over the past year, it has felt like a patriotic fervor and a heavy dose of superior morality, has crept into the political and legislative discourse.  Heck, the other night I heard the head of USDA on the Colbert Report say that childhood obesity is a national security issue.  He said this with all of the conviction that Janet Napolitano and John Pistole have shown when speaking on the fact that groping and aggressive pat-downs are necessary for our national security.  It’s now clear to me, that if you want to make any argument in our country the best way to do so is to explain that it is being done to “protect the children” or for “national security”.  By the way, if we were playing rock-paper-scissors and two of those were represented as “protect the children” and “national security”, “national security” trumps “protect the children” as exemplified by the groping of minors by the TSA.  Clearly an example where national security is more important than protecting the children, but I digress.

For all of the time that so many people and organizations (ie. the EFF (Electronic Frontier Foundation), the ACLU (American Civil Liberties Union), EPIC (Electronic Privacy Information Center), the CDT (Center for Democracy and Technology), the CCR (Center for Constitutional RIghts), et. al.) have spent fending off the government and commercial interests from violating our privacy, it seems that so many more people don’t seem to care about their privacy.  Never mind that we all have things that we would prefer to keep confidential or simply not share with the world, but when confronted many people are beginning to say that they have nothing to hide from anyone.  The number of people who have said that they don’t care about the TSA’s approach or that they understand the need for it, is simply staggering to me.

More recently, we have been seeing interviews with folks at bus stations going through the similar pat-downs as are happening at airports, and many respond in interviews that they’re OK with it because “I feel better knowing that I won’t get blown up”.  Combine this with the lack of sensitivity and understanding on these issues being displayed by the Fourth Estate.  While I can rationalize that the average person doesn’t have time to think through the issues, we also see CEOs of significant technology companies (with vested interests, but don’t let that get in the way), offer different but equally impassioned perspectives about the death of privacy.  From Bruce Schneier’s blog:


“In January, Facebook Chief Executive Mark Zuckerberg declared the age of privacy to be over. A month earlier, Google Chief Eric Schmidt expressed a similar sentiment. Add Scott McNealy’s and Larry Ellison’s comments from a few years earlier, and you’ve got a whole lot of tech CEOs proclaiming the death of privacy — especially when it comes to young people.”. (http://www.schneier.com/blog/archives/2010/04/privacy_and_con.html)

These are all people who should know better, and perhaps they do.

Our government, through its law enforcement agencies, is also constantly fighting to remove our privacies in the name of national security.  Of note here, are their efforts to require the least amount of oversight possible into its requests for cell location data.  Recently, conflicting opinions were given by the D.C. Circuit Court and the Third District Court which may land this issue in front of the Supreme Court for some meaningful resolution.  Commercial and educational institutions want to track everyone with RFID (Radio Frequency Identification).  If you combine this with government tracking laws being debated above, then the intrusions on our privacy become self-evident and complicit.

So the question that comes to my mind is why do we have the Fourth Amendment to the U.S. Constitution?  If industry and government find it inconvenient, and a significant number of people in the country don’t care about it, then why do we have it?  Why not just stop the hypocrisy and minimize the amount of stuff we claim is important to us and simply discard this, since clearly few find it important?  Let’s stop saying that we’re fighting wars and securing our nation to protect all of our Constitution, since that is clearly not true.  Maybe we care about some of the other amendments, but the Fourth ain’t one of them.  While we’re at it, let’s examine the controversies that suggest that we also don’t hold the First Amendment to the U.S. Constitution in high esteem.

Not too long ago, we saw much commotion around the Park 51 (aka. Cordoba House and “Ground Zero Mosque”), and whether the City of New York should allow its construction as a result of protests from conservative groups and plenty of liberals misdirecting their empathy.  This of course raised another First Amendment issue around the free exercise of religion.  It seemed like an awful lot of people were against this construction.

Most recently, law enforcement, specifically the Justice Department and the Immigration and Customs Enforcement decided not to wait for the ratification of the Combating Online Infringement and Counterfeits Act (aka. COICA) to pursue shutting down 82 Web sites that they considered illegal.  This took place under a forfeiture law.  However, in a few cases, the domains themselves were not infringing on any laws and were merely search engines that complied with the DMCA (Digital Millenium Copyright Act), though in some cases ended up pointing to sites that might have been infringing on copyrights.  Where sites were pointing to infringing ones, this is a First Amendment free (protected) speech issue, but no due process is being afforded to make these determinations.

As many have no doubt heard on the news or read online, Wikileaks released secret U.S. information relating to its role in both the Iraq and Afghanistan wars.  The latest release was relating to U.S. diplomatic cables.  Clearly, the release of all of this information has given us and the world, a rare glimpse into how our government has misled us and at times even claimed information to be of national security importance to justify its secrecy, when in reality it was for political expediency.  Rather than deal with the issues raised by these documents, our legislators and current and former government officials are calling for the blood of the messengers, (ie. “Rep. Peter King: Prosecute Wikileaks, Julian Assange“, “Wikileaks must be stopped“, “U.S. Senators call for Wikileaks to face criminal charges“).  Of course, the irony here is that the first people to have actually published information contained in the Wikileaks release for the public to see, were some mainstream media newspapers including the NY Times, Der Spiegel, El Pais, Le Monde, and The Guardian (UK), but we have yet to hear of any of them being accused of any wrongdoing.  That and the fact that Wikileaks was not the actual leaker of the releases they have made available.  This event clearly raises First Amendment issues around journalistic freedom and freedom of speech.  We did not see Woodward and Bernstein get accused of any wrongdoing during the leaks around Watergate, and Daniel Ellsberg still roams free despite the Pentagon Papers release, but it seems that Wikileaks has drawn the ire of the U.S. government.  Heck, Sen. Lieberman is using this as an opportunity to grandstand his cause celebre and to disembody the First Amendment.

With all of this effort, and the attempts to route around and through the First Amendment, it’s clear that it too is not highly valued.  The voices in support of Wikileaks are not nearly as loud as those who see their actions as criminal, at least in the U.S.  So there, we can now count another amendment of the U.S. Constitution that we could do without.  I’m not suggesting that people don’t try to live by these ideals, but why codify something that so few care about, believe in, or truly think that it is getting in the way of our…wait for it…national security.  I suppose that removing these amendments from our Constitution would go a long way towards reducing the hypocrisy behind the positions that our commercial and government organizations, and many of our fellow citizens, have taken.

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