2014-01-21 – People who are on the front line in the ongoing struggle for the right of privacy are seldom model citizens.
Think about criminal defendants who appeal their convictions on the grounds of government overreach in the collection of evidence. They are often the scummiest of the scum, and yet circumstances put them in the position of litigating to uphold our fourth amendment rights against unwarranted search and seizure and our fifth amendment right against self-incrimination. If the government can spy on the scum, they can spy on us.
Think about the right to an abortion. Part of that right is based on our right of privacy. To enforce antiabortion rights, the government would need to intrude upon our right of privacy. You may think that a woman who has an abortion or a doctor that performs one is despicable (or you may not). But she, who is controversial at best, is a bulwark against government intrusion into our most private lives.
It is with that understanding that I read Sunday’s New Republic article “Would You Feel Differently About Snowden, Greenwald, and Assange If You Knew What They Really Thought?”
The answer to the title question is No, I don’t feel different. I fully expected them to be unsavory characters. I am not their fans. They are like the criminals fighting to preserve my fifth amendment rights, in my mind. I don’t have to like them to think that the government may have been doing something shady.
Does that mean that I believe that characters like Snowden, Greenwald, and Assange should get off scott free?
Controlling government intrusion into our private lives is a very tricky thing. In criminal law, illegal police action is supposed to be deterred by excluding from trial all evidence obtained by illegal means. This exclusion rule is, theoretically, not the only way we could punish violations of the fourth and fifth amendments.
We could allow the use of illegally obtained evidence, but give the defendant the right to sue the government for damages. Would that be effective? Who knows? Police departments might be happy to pay a little money once in a while to get nasty criminals off the street. And do you think nasty criminals would be very sympathetic plaintiffs in cases like that? Don’t count on it.
What we do know is that the exclusion rule does deter police departments, at least somewhat, even if it may not deter individual cops. Department policies across the country now mostly require compliance with the constitutional rules.
Leakers and whistle blowers are a different dynamic, so it is valid to ask whether people like Snowden should be given a pass (Greenwald and Assange may be a different story as they are not the thieves but rather the receivers of stolen information). There have been attempts to write laws to shield these kinds of folks against prosecution.
And it is complicated. Does leaked information expose valid secrets or does it expose government wrongdoing? And how do you tell the difference between valid secrets and government wrongdoing? The two may be inextricably entwined. Some of the NSA activities, in my mind, were reasonable and some were not. Does it matter if the surveillance prevented acts of terror? How would we know? Does the leak itself put people in danger?
There are lots of questions, but until these issues are resolved, there is the following dynamic at work.
Criminal penalties deter idle and random leaks. A person working for an agency like the NSA who becomes aware of wrongdoing should have a choice of remaining silent or doing an act of civil disobedience. Civil disobedience carries risk, but a person who feels strongly will take the risk.
It’s a kind of checks and balances system. On the one hand, Big Brotherism probably is only held in check by the threat of leaks. On the other hand, leakers need to be held in check by the threat of prosecution.
The interesting thing about this controversy is that people are up in arms about government spying. But what about corporate spying. How are Google and Facebook and Twitter and Microsoft using your personal information? And what about credit bureaus and financial institutions and doctors and hospitals and insurance companies? Which type of surveillance hurts you worse?