Privacy is a relatively new “right.” In 1965 the U.S. Supreme Court had to invent a right to privacy to permit access by a married couple to contraception; again, more famously, it arose in 1973 Roe v Wade to protect a woman’s right to abortion on demand. The court pretzeled the 14th Amendment to the Constitution to create this right.
For its part, the Constitution does not mention privacy.
Indeed, the degree of privacy that today’s Americans and Canadians consider the norm would have been risible a generation ago.
Bluntly, “privacy” is a modern affectation. And one which technology now has made electronically irrelevant; the government’s protestations of adherence to law should be skeptically viewed.
Privacy, moreover, is a circumstance that appears less and less relevant to most citizens. Social media is replete with photos and videos that in days of yore would have been regarded as “soft porn." Users of social media are cautioned against postings that might come back to haunt them if they are applying for jobs and/or security clearances. Or, since the Internet lasts forever, what their children and (heaven forbid) grandchildren might get to see. But actual users appear indifferent; perhaps they implicitly conclude that when actions, such as open sexual activity or the use of mind-altering substances become universal, they are relevant only to the individuals concerned, and general society could care less. With polls indicating that more than 50 per cent of the respondents have engaged in “sexting” and/or explicit sexual language in email, Twitter or other electronic media, it has become the norm rather than the exception. When was the last prosecution in civilian courts for fornication? Adultery?
What remains important, however, are the protections conferred by the U.S. Fourth Amendment to the Constitution which ensures that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In our arguments over the Edward Snowden revelations, it is illegal government search and seizure, not privacy, per se, that is the concern.
One is left with the impression that the National Security Agency’s ability to accumulate “E-lint” (electronic intelligence) is open-ended in its capability and capacity. GPS chips can track every cellphone, computer, and license plate. Every phone number, every email, every electronic transaction, indeed every computer key stroke can be intercepted, stored, and available indefinitely for subsequent analysis. Likewise, every cellphone conversation (unless highly protected) can be intercepted — hence German Chancellor Merkel’s outrage over revelation that her cell phone conversations were caught.
Perhaps some of those outraged believe we are still living in an age where “gentlemen don’t read other gentlemen’s mail”?
If such actions were not being done by the governments, they would arguably be criminal conduct (akin to the hacking of Target and Neiman Marcus to obtain customer’s credit card information). But the courts have deemed these practices legal activity in defense of national security.
Nevertheless, congressional outrage of “high dudgeon” dimension is generating galaxies of electrons. We can be confident that there will be a spate of new regulations/laws ostensibly to control government action (as well as the ongoing apologies to various foreign governments). But cynically one expects we will do what we deem necessary.
François de La Rochefoucauld’s maxim lives, “Hypocrisy is the tribute that vice pays to virtue.”
David T. Jones is a retired State Department Senior Foreign Service Career Officer and a frequent contributor to American Diplomacy. During a career that spanned over 30 years, he concentrated on politico-military issues, serving for the Army Chief of Staff. He is co-author of Uneasy Neighbor(u)rs, a study of American-Canadian bilateral concerns and has published several hundred articles, columns, and reviews on U.S. - Canadian bilateral issues and general foreign policy.