Land of the Free, Home of the Surveilled?

January 30, 2011

Government investigations always demand a balancing of interests. While we want investigators to monitor those who seek to harm others, we expect that we have certain privacy protections. We want the reassurances that our government is doing everything possible to prevent terrorist attacks, but we don't want the government to invade the privacy of law-abiding citizens.

Over the past decade, our government has assembled the most technologically sophisticated system for collecting information about Americans in the country's history, according to the Washington Post. Combining the efforts of nearly 4000 federal, state and local law enforcement agencies, the government is collecting, storing and analyzing information about thousands of people in the United States.

The Washington Post notes that the FBI has created an extensive repository of information about tens of thousands of citizens and legal residents who someone has reported for suspicious behavior. In many cases, those who are profiled have been accused of no crime or wrongdoing -- they have simply caught someone's attention and become the subject of increased governmental scrutiny.

The growth in domestic surveillance poses a variety of problems. As a practical matter, this extensive monitoring is costly and its effectiveness is difficult to evaluate. The federal government contributes billions of dollars to domestic counterterrorism investigations, but much of the spending comes from state and local budgets that are difficult to aggregate. When we're spending billions of dollars on programs to keep us safe, it would be helpful to know whether they are working.

On a more theoretical level, though, it is important to consider what we surrender when we accept extensive government monitoring of American citizens as a standardized practice. Local law enforcement officers across the country are currently using technologies tested and perfected in Iraq and Afghanistan. Abroad, our military might use technologies to obtain computer records or phone numbers from alleged al-Qaeda members -- but the fact that we have the technology does not mean that we want it to be used to investigate U.S. citizens.

Equally important, one must consider the issue of boundaries. We might be more inclined to accept greater intrusions in the interest of preventing terrorism -- but then these intrusions become an acceptable practice and we all face increased scrutiny in all aspects of life.

What about our Constitutional privacy interests? The Constitution does not provide an explicit right to privacy, but the Fourth Amendment protects us from "unreasonable searches and seizures." Law enforcement officers cannot simply demand to see your phone records or search through your computer history -- they must have probable cause that a crime has been committed to demand a search.

In determining whether an individual has been subject to a search, one of the first questions is whether or not that person had a reasonable expectation of privacy. If an individual does not have both an objective and subjective expectation of privacy, there is no search. A primary constitutional issue, then, becomes the subjective expectation of privacy.

In a world where we are surrendering our expectations of privacy and accepting that routine government surveillance of people who have truly done nothing wrong is acceptable, our constitutional privacy protections grow weaker. For those concerned about the growing role of monitoring, now is the time to speak out.

Article provided by Scott Grabel & Assoc.
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