3 Reasons the Boston Bombing Case Should Not Change Our Attitudes About Privacy

And one reason why it should.

The rapid identification and tracking of the Boston bombing suspects has made many Americans contemplate the benefits of a world where everything and everyone is watched and recorded, every electronic signal analyzed and traced. Figures ranging from Rep. Peter King to Tom Brokaw have called for more surveillance. New York Mayor Bloomberg, always eager to make himself a walking caricature of modern managerial liberalism, is urging us to change "our laws and our interpretation of the Constitution."

Grant Fredericks, who teaches video surveillance forensics to FBI agents, laid out the lessons of Boston to law enforcement mavens in bold terms: "Video provides a chronology from before an event was planned until the arrest if you get to it soon enough. You don't know yet what you have, so you have to get everything.”

But is that a reasonable conclusion? Here are three reasons the Boston bombing investigation doesn't require us to undo any privacy protections.

1. The Boston investigation came to an apparently successful end without needing increased surveillance power. Even if you accept the necessity of widespread surveillance, there's no sign that there wasn't enough of it. The public spaces of Boston were already filled with enough private cameras to close the net on the suspects. Ubiquitous public cameras—watched always by officials with power over us—raise obvious problems, as the American Civil Liberties Union has noted, of criminal abuse, institutional abuse, personal abuse on the part of officials, discrimination, and rampant voyeurism. 

2. The Boston bombing does not represent an unprecedented mortal threat requiring unprecedented police powers. Bombings in America were slightly more common in the 1990s than after the War on Terror launched in 2001. Farther back—yet still within living memory—domestic bombings were almost a daily occurrence. In 1969 and 1970, over a thousand explosive or incendiary bombs were set off in the U.S. More recently, in 1975, terror groups from the Weather Underground to the Puerto Rican separatists of the FALN carried out several public bombings, including at a popular New York restaurant (four dead), the LaGuardia Airport baggage claim (11 dead), and the U.S. State Department (no casualties).

Bomb violence, like gun violence, is much less common in the U.S. today than it was in the recent past—a past we survived without turning the country into a fishbowl for police.

3. Universal surveillance just ain't us. For libertarians who like to reduce all questions of policy or justice to strict property rights, surveillance can be a tricky issue. There is nothing inherently rights-violating about private cameras on private property, and libertarians who aren't anarchists can make a case for government surveillance on public property too. But although it is settled law that there is no reasonable expectation of privacy in public spaces—and thus no constitutional barrier per se to universal public surveillance—such a notion clearly offends something at the core of the American vision of limited government power.

Americans resonate to slogans such as "Give me liberty or give me death" and "Don't tread on me," and our Constitution deliberately limits government authority. We are the land of the free and home of the brave, not the land of the watched and home of the scared. The eagle on our national seal does not clutch a banner reading "Only the Guilty Have Reason to Fear."

Universal surveillance is a recurring theme in our cultural concept of totalitarian nightmares ("Big Brother is Watching You"), and that says something about our culture. Traditional notions of American dignity reject being watched and searched without a very good reason; and even with that reason, we want constrained methods.

It may not steal our money or explicitly and directly restrict our ability to act, but the all-seeing, all-knowing eye of officious authority does make life less worth living, less rich, and less free. It gives authority a power and reach they do not deserve to have. This is especially true in a panicked world where what you read and who you associate with can draw undeserving suspicion from a paranoid authority. Do we want all the world to have the freewheeling joie de vivre of a TSA airport screening?

Nothing about the Boston bombing gives any good reason to change our traditional aversion to such surveillance.

There is one respect, though, in which the methods used in the Boston investigation should change our national attitudes about privacy: by making Americans more aware that techniques such as cell phone tracking are not just emergency expediencies in investigating the most horrific crimes.

As Ronald Bailey's January Reason feature "Your Cell Phone is Spying on You" explained, "law enforcement agencies made 1.5 million requests for user data from cellphone companies in 2011." Bailey also pointed out that they don't want you to know it:

Law enforcement agencies prefer not to talk about cellphone tracking. "Never disclose to the media these techniques—especially cell tower tracking," advises a guide for the Irvine, California, police department unearthed by the ACLU in 2012. The Iowa Fusion Center, one of 72 local law enforcement intelligence agencies established in coordination with the Department of Homeland Security, distributes a training manual that warns, "Do not mention to the public or media the use of cellphone technology or equipment to locate the targeted subject." The ACLU translates: "We would hate for the public to know how easy it is for us to obtain their personal information. It would be inconvenient if they asked for privacy protections."

After the Boston bombing investigation, many more Americans became aware that cell phone tracing is a police tool. Hopefully, many will realize that it's an all-too-common tool used for issues far less important to public safety than finding mad bombers on the loose. Any new or expanded surveillance practices that arrive because of the Boston bombing will also be used for reasons far less important. 

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  • WomSom||

    Sometimes you jsut have to roll with it.

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    Roll with the punches? Or the drones?

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  • ||

    This is one of the better and more persuasive articles I've read at Reason in some time. Congrats to the author.

    One main point that really hits home is the surveillance from a public place. It does bother any "right thinking" american - surveillance. Even if it is done from a public place, where one has no expectation of privacy (iow it;s entirely constitutional too), it still makes the civil libertarian in us get all spitty and rebel. It ABSOLUTELY would make it easier to solve all sorts of crimes, etc. if we had a massive net of public surveillance cameras but is the tradeoff worth it? I would say no, absolutely not.

  • coma44||

    We are the land of the free and home of the brave, not the land of the watched and home of the scared

    We were the land of the free 100 or so years ago, it has been a steady march toward what our founding fathers fought against back in 1776.

    While this is still one of the best countries in the world, and I would not live any other place, I don't believe we are truly free.

    And after hearing and seeing people like Mr. Bloomberg from NY say and do the things he says "are necessary" I can only ask necessary for who?

    We have lost 100 years in the fight to keep liberty and freedom. How many years will it take to get half of it back?

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    I personally think I would be ok with more government surveillance systems. If, and this is a big if mind you. Because I don't think it would ever go down this way. But, if we treated the data captured by surveillance systems like a black box on an aircraft. And, required a warrant to obtain the data for analysis.

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  • Hugo S. Cunningham||

    This article underestimates the value of solving the Marathon Bombing quickly. If it had not been for one camera at a private site (Lord & Taylor), we would still be going around in circles, and healing could not begin.

    Threats to liberty can (and should be) mitigated by:

    (1) a robust exclusionary rule to block use of surveillance video to prosecute victimless and other petty offenses.

    (2) ferocious civil and criminal penalties for misappropriating surreptitious surveillance footage, and especially for using it to harass or blackmail harmless bystanders. The jerk who thinks it is funny to upload footage of a couple making out in the back seat of a car would find it less funny when he realized he had just made a gift to them of his house, his retirement savings, and his kid's college fund.

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