PRIVACY IN AMERICA
For GOOD CAUSE OR LOST CAUSE
An MLA PAPER by MYSTICALGOD
Lawrence – Privacy MLA Lawrence Professor Dumbledor magical english 101 14 March 2010
Loss of Your Privacy, for Good Cause or Lost Cause? The right to privacy has not been not expanding, but it has been shrinking with each passing year, in our country. The dominating justification used to remove people's right to privacy has been to prevent varying levels of crime. Terrorism has been one cause for the most intense change to people's right to privacy. In an ongoing war against terrorism, we have been confronted with having to weigh whether the loss of privacy is for good cause or lost cause. One might start to approach this subject matter as a way to control what could get out of control. The U.S. Supreme court had once said: The warrant clause of the Fourth Amendment is not dead language. . . . It is not an inconvenience to be somehow ‘weighed’ against the claims of
police efficiency. It is,
or should be, an important working part of our ma-chinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement. (Powell 481).
Lawrence – Privacy MLA This is more easily said than done, especially when those who are empowered to regulate laws are the ones who are creating the laws which need the most regulation. Take the executive order given by President Bush, as an example. On December 16, 2005, the New York Times published a front-page story revealing the existence of a secret executive order issued by President George W. Bush in the months following the September 11, 2001 terrorist attacks on the United States.(Risen & Lichtblau, A1) According to the article, the executive order authorizes the National Security Agency (the “NSA”) to conduct electronic surveillance on U.S. citizens and permanent residents inside the United States without first obtaining a warrant from the Foreign Intelligence Surveillance Court as man-dated by the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Yet, prior to this order, the realm of searches and seizures were already in rough waters due to numerous cases involving problems of pretext. Who is to truly know the real intentions of the officials behind the search? This resulted in the application of The Fourth Amendment's right to privacy being used as a remedy rather than a preventative. Some believe that the problem is wherein the solution lies, to place greater controls on the actions of policing officials in order to prevent pretext and other abuses. As Citron stated in his journal: Since Whren v. United States, Fourth Amendment analysis has
Lawrence – Privacy MLA failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. (Abstract) But in response to Citron, Judge Robertson, U.S. District Court for the District of Columbia, argues that pretext by officers may be distasteful, but it isn't grounds for suppression: Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “a liberated space for bad intentions”? (Robertson 374) Understanding these opposing views of whether intentions for taking away a person's right to privacy is justly motivated by good
Lawrence – Privacy MLA cause, or injustly motivated by bad intentions, can give us a better idea of how to examine, or analyze, today's leading issues concerning privacy, under a more impartial light. Three leading issues for us to consider are: wire taps, credit history investigations, and body scanners. Wire Taps Wire taps used to mainly consist of some type of inline device that would allow listening to a person's phone conversation. Now, with todays level of computer technology, a wiretap may involve intercepting emails, digital media (such as video or photos), device monitors (such as gps systems, baby monitors or othe wireless devices, blue tooth systems, etc.), or faxes: The NSA identified domestic targets based on leads that were often derived from the seizure of Qaeda computers and cell phones overseas. If, for example, a Qaeda cell phone seized in Pakistan had dialed a phone number in the United States, the NSA would target the U.S. phone number—which would then lead agents to look at other numbers in the United States and abroad called by the targeted phone. Other parts of the program were far more sweeping. The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens. Separately, the NSA was also able to access, for the first
Lawrence – Privacy MLA time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals —that were being reported to the Treasury Department by
financial institutions. These included
millions of "suspicious activity reports," or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer's use of prostitutes.) These records were fed into NSA supercomputers for the purpose of "data mining"—looking for links or patterns that might (or might not) suggest terrorist activity. (Isikoff 3) Opposition to wire taps, and other types of surveillance by government
officials,
is
difficult
to
support
and
to
present
in
court. The reason for this is because such documents and discussions are classified as secret. This is known as “the secrecy priveledge”. It's hard to talk about, or reveal, a document that you are told you are not allowed to talk about. Often the media has run into this problem, and they have been penalized for doing so in the past. One official, Thomas M. Tamm, chose to speak out about surveillance methods he considered to be wrong, and he has been under fire by officials for doing so: In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of
Lawrence – Privacy MLA suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. Citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that "the program" (as it was commonly called within
the office) was "probably illegal." (Isikoff
1) Is there any support, other than the obvious, for wiretap methods of surveillance? Among so much talk against it, while it continues to thrive, one must realize that perhaps it doesn't actually need support because it can sustain it's own existence and intentions. The most striking fact from both the FDR and Bush Administration electronic surveillance programs is that the courts and Congress were powerless to stop them. In America, Congress is supposed to have primacy. As Federalist No. 51 puts it, “In republican government, the legislative authority necessarily predominates.”288 But in
Lawrence – Privacy MLA the context of electronic surveillance that predomination had little concrete effect. So, too, with the courts. Americans pride themselves on a Supreme Court that stands up to presidents in the name of principle.289 But in both World War II and the War on Terror, nothing happened in the courts or Congress that had any practical impact on the surveillance either. Credit History Investigations Anyone with a “legitamate business need” can investigate a person's credit history. The information discovered by such an investigation will disclose material that is protected by privacy rights. This type of information, according to Privacy Rights Clearinghouse, contains a data mine of information which includes a person's Social Security number, date of birth, current and previous addresses, telephone number (including unlisted numbers), credit payment status, employment, even legal information. (Privacy Rights Clearinghouse) The majority of those performing credit history checks claim that without such information, they would be taking significant risk with the person of whom the report concerns. Employers are among this majority. Amy B. Crane of Bankrate.com lists some arguable reasons for the need for credit history investigations: An employer's need to know about potential employees is driven by a number of factors, according to the Privacy
Lawrence – Privacy MLA Rights Clearinghouse. These include: •
False or misleading information given by job
applicants, estimated by some sources at 30 to 40 percent of all information given on resumes and job applications. •
Federal and state legal requirements for certain jobs,
including those that involve contact with children, the elderly or disabled, as well as some government jobs. •
Fallout from corporate scandals, such as Enron and
WorldCom •
The Sept. 11 attacks
•
Negligent hiring lawsuits, where a company is sued
because an employee caused harm to someone else.(Crane) While Most employers currently hiring will seek this private information, believing it is their right to know, many people oppose this process, stating that it is invasive and detrimental to their access to fair employment and lifestyle. Maryland Delegate, Kirill Reznik stated: We are in the great recession and this creates a vicious cycle, People lose their jobs, that naturally precipitates them getting behind on bills, their credit scores go down,
Lawrence – Privacy MLA they are trying to find a job to pay off the bills, and employers won't hire them because of their credit score (Associated Press) Body Scanners Following the Chistmas bomb attempt in 2009, aboard flight 253, by Umar Farouk Abdulmutallab, Transportation officials (TSA) announced that several more major U.S. Airports would be receiving full-body imaging machines, otherwise known as body scanners. The scanners can show objects hidden under clothing. It's believed that such a device would make air transportation safer from terrorist threat. TSA asserts that: this technology can detect a wide range of threats to transportation security in a matter of seconds to protect passengers and crews. Imaging technology is an integral part of TSA's effort to continually look for new technologies that help ensure travel remains safe and secure by staying ahead of evolving threats. (TSA) Twenty-one airports currently use body scanners. Because the scanners show the person as completely nude, these devices have recently faced much opposition. The ACLU argues:
Lawrence – Privacy MLA Widespread deployment of body scanners does not make sense as a response to the Abdulmutallab attack. This technology should not be used as part of a routine screening procedure, but only when the facts and circumstances suggest that it is the most effective method for a particular individual. And such technology may be used in place of an intrusive search, such as a strip search – when there is reasonable suspicion sufficient to support such a search. This technology involves a striking and direct invasion of privacy. It produces strikingly graphic images of passengers’ bodies, essentially taking a naked picture of air passengers as they pass through security checkpoints. It is a virtual strip search that reveals not only our private body parts, but also intimate medical details like colostomy bags. Many people who wear adult diapers feel they will be humiliated. That degree of examination amounts to a significant assault on the essential dignity of passengers. Some people do not mind being viewed naked but many do and they have a right to have their integrity honored.
Lawrence – Privacy MLA
CONCLUSION Whether the concern is for safety, or employment, or security, people have one objective in mind: the right to privacy. The abundance of evidence is available wherever people look. People also want safety and security. The remaining choices to be made are where the line should be drawn to protect people's right to privacy.
Works Cited Powell, Keith (Judge). 407 U.S. 297, 315–16 (1972), quoting from Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971) Risen, James & Lichtblau, Eric. Bush Lets U.S. Spy on Callers Without Courts, New York Times, Dec. 16, 2005 Citron, Eric F.. Tuesday, 20 March 2007 116 Yale Law Journal 1072 (2007) Robertson, James. How Whren Protects Pretext, 116 Yale L.J. Pocket Part 374 (2007), Michael Isikoff, JUSTICE The Fed Who Blew the Whistle, NEWSWEEK, Dec 13, 2008 (issue Dec 22, 2008), Katyal, Neal and Caplan,Richard. The Surprisingly Stronger Case for the Legality the NSA Surveillance Program: The FDR Precedent, GEORGETOWN LAW Faculty Working Papers, Stanford Law Review, 2008 Privacy Rights Clearinghouse/UCAN. Fact Sheet 6: How Private Is My Credit Report?, Posted November 1992 Revised May 2009, Crane, Amy. Why Employers Need to Know About You, 2010, Associated Press, Employers checking credit history, March 2, 2010, The Washington Times, Imaging Technology, Transportation Security Administration, 2010, ACLU Backgrounder on Body Scanners and “Virtual Strip Searches”,January 8, 2010,
