Page 136 - Privacy in a Cyber Age Policy and Practice

124 PRIVACY IN A CYBER AGE

these claims can be neither maximized nor fully reconciled, as there is an
inevitable tension among them. It follows that we must work out some balance
among the conflicting claims rather than assuming that one will always trump
the others. This chapter applies this approach to the balance between national
security and individual rights, particularly the right to privacy, in the context
of recent surveillance revelations. These include the U.S. government’s phone
metadata surveillance, which collects information such as caller ID, times, and
duration of U.S. phone calls, but not what was said,as well as the PRISM pro-
gram, which collects the Internet communications of foreign nationals. 3
In contrast to applying this balancing approach, libertarians, civil
libertarians, and a fair number of contemporary liberals tend to emphasize
4
individual rights and autonomy over considerations of the common good.
At the opposite end of the spectrum are authoritarian communitarians
5
(mainly in East Asia ) who privilege the common good a priori and pay
6
mind to rights mainly to the extent that they serve the rulers’ aims. In
this sense, liberal communitarianism occupies the middle of the spectrum
between libertarianism and authoritarianism, and draws mainly on social
pressures rather than state coercion.
The text of the Fourth Amendment provides a strong expression of the
liberal communitarian philosophy. It states: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” By banning only unreasonable
searches and seizures, it recognizes by extension that there are reasonable
ones, namely those that serve the common good.
Public intellectuals, elected officials, and segments of the media tend to
adopt a one-sided advocacy position whereby they champion one of the
two core values of society, arguing that some individual right—e.g., privacy
or the right to freedom of speech or assembly—is being violated and that
the laws or actions responsible should be halted. They often argue that “it is
against the law, hence it is wrong,” or that the court ruling or law on which
a particular surveillance program is based violates a core value, such as our
right to privacy, and hence should be rejected. They do not ask whether
the other core value, national security, might justify some scaling back of
these rights, and do not recognize that the balance between the core values
has often been recalibrated over the decades. To remind the reader, there
7
was no federal right to privacy until the mid-1960s, and until 1919 the
Supreme Court failed to endorse a single legal claim that the government
had violated the (now semi-sacred) right to free speech guaranteed by the
First Amendment—and even then it did so only in a dissenting opinion. 8
In contrast to the one-sidedness of advocates, the courts, which often
9
use the term “public interest” rather than “the common good,” regularly
10
weigh both core values. In several cases, they concluded that the threat to