On a February day in 1761, in a tiny Massachusetts courthouse, Boston lawyer James Otis rose to fight an “insidious and mischievous” wrong committed by the British Crown. For five hours, he electrified listeners by demonstrating what he called the “illegality,” “iniquity,” and “inhumanity” of the Crown’s action against the American colonies. A young observer named John Adams later wrote that “American independence was then and there born; the seeds of patriots and heroes were then and there sown, …[it] was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child independence was born. In fifteen years, namely in 1776, he grew up to manhood, and declared himself free.”
The great wrongdoing of England that caused this first rumbling of revolution was neither a tax on tea nor a lack of representation in parliament. Instead, it was the Crown’s unfettered use of Writs of Assistance. Known today as generalized warrants, the writs allowed British officials to ransack the private property of colonial merchant without having to establish probable cause before a magistrate. Adams wrote that such generalized warrants were “a base instrument of arbitrary power,” and “destructive to the liberties of his country.”
Nearly 250 years later, 21st century America is bearing witness to a strikingly similar debate. In the name of security, the National Security Agency is obtaining generalized warrants and compromising the privacy of American citizens without having to establish probable cause. While technological advancements now provide government tentacles a farther reach into the everyday lives of citizens, the principles of liberty, privacy, and independence remain unchanged. The maintenance of a free republic demands that the privacy of citizens be respected. First, let us examine the nature of privacy, then its role in a free society. Finally, we’ll consider the NSA, its inappropriate surveillance of metadata, and what steps need to be taken to restore our Constitutional principles.
Before considering the nature and implications of privacy, we must first adopt a common definition of the word. The Oxford English Dictionary defines it as an “Absence or avoidance of publicity or display,” “Confidential, not to be disclosed to others.” Privacy also has a moral aspect. Peggy Noonan, former presidential speechwriter for Ronald Reagan explains: “Privacy is connected to personhood. It has to do with intimate things — the innards of your head and heart, the workings of your mind — and the boundary between those things and the world outside.” From this understanding, we can build a framework by which to think about the nature of privacy.
For every person, there are certain things about oneself that others should not know, things you do not want to be made public. In a Lockean state of nature, people have absolute authority over their own private information. And under no circumstances should that knowledge be made public, unless the individual should choose to disclose it.
Men, however, do not live in a state of nature. We are, as Aristotle says, political animals. Man can only be truly happy when living in friendship with other virtuous citizens in a polis that seeks the public good through deliberation and prudence. When men come together to create a city, they desire a good government, one that protects their natural rights—a thing not secured in the state of nature. In order to create a government powerful enough to protect the life, liberty, and property of its citizens, men must relinquish a certain portion of their rights. This power, derived justly from the consent of the governed, enables the government to achieve its ends of securing the rights of its citizens. This arrangement between men is known as the social compact and it is on this theory that the Founding Fathers fashioned the United States.
In a free republic such as ours, government respect of privacy is not only guaranteed but also is pivotal to the preservation of our liberties. The preamble to our Constitution states that our republic seeks to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty…” It is the dedication to these things makes America great. The means by which our government achieves its ends must not negate the very things that make our country good. Our government cannot simply neglect to secure the blessings of liberty.
Being part of a social compact, it is important to remember that men no longer have absolute authority over their privacy. The government, however, may only abridge the privacy of citizens as much as is necessary to secure the nation and if probable cause is first established. To secure a free republic, we must, at some level, use surveillance; yet, to preserve a free republic, we cannot have an excessive surveillance state.
There are two primary means to finding and maintaining the balance between privacy and security. The first is prudential statesmanship. St. Thomas Aquinas, in the “Summa Theologica” explains that prudence, or practical wisdom, bridges both spheres of intellectual and moral virtue. He called prudence both a “wisdom concerning human affairs,” and “right reason with respect to action.” Prudence allows statesmen to soundly apply experience and wisdom in light of particular circumstances.
The second is a procedural process. The Fourth Amendment protects against unreasonable search and seizures. With probable cause and a specific description of “the place to be searched, and the persons or things to be seized,” police and security officials can obtain a warrant. The amendment, however, specifically guards against generalized warrants.
Let us now turn to the NSA. In June 2013, Edward Snowden, a former government contractor, leaked classified documents stating that the NSA was tracking and storing the metadata for all Verizon users. Metadata includes the times, locations, durations, of all calls. While it doesn’t include the content of calls or emails, according to Dr. Orin S. Kerr, a law professor at George Washington University, metadata “can be very revealing…[it] allow[s] them to assemble a picture of what someone is up to. It’s the digital equivalent of tailing a suspect.” And all this information was collected and stored on millions of American citizens without probable cause. The NSA obtained generalized warrants from secret FISA courts to conduct this inappropriate surveillance.
Conducting surveillance to monitor the electronic movements of foreign terrorists is well within the purview of the NSA. Monitoring movements of American citizens, with suspected links to terrorist sleeper cells is also within the purview of the NSA, if probable cause has been established and a specified warrant obtained. The question is one of protection through procedure.
Outside the National Archives in Washington, D.C., a pillar of marble reads: “The price of liberty is eternal vigilance.” The NSA has, indeed, violated the privacy of millions of Americans, but we must fight against this injustice. We must continue having discourses about this issue in academia, in the public square, and at the kitchen table. We should support people like Sen. Rand Paul who is suing the NSA over its use of generalized warrants. Writing about that Boston Courtroom, so many years ago, John Adams said “that Mr. Otis’s oration against writs of assistance, breathed into this nation the breath of life.” May we, as we take up this worthy mantle, breath into our nation a respect for privacy and liberty once more.
