During a visit to Richmond, Virginia on Monday, his third day as FBI director, Jim Comey welcomed the current debate over the reach of government surveillance. “The pendulum swings back and forth” between liberty and security, he said. America benefits when those with differing views on the issue “bang it out.” Comey, whose modesty is proportional to his height (six foot eight), did not remind those present of his own role in pushing the pendulum back toward the civil-liberties end of its arc during a now-famous showdown at the hospital bedside of former Attorney General John Ashcroft.
But Comey added that he didn’t always find the liberty-versus-security dichotomy helpful. Sometimes security and liberty move in tandem, he said. He offered the illustration of a police officer on a playground whose presence makes everyone in the vicinity feel both more secure and more free.
It’s a fair point. Yet if that were all there were to the matter then the current debate would seem wildly overblown. Is it? Clearly not: Many serious, intelligent people find the recent revelations about domestic spying highly unsettling. Why is that?
Go back to Comey’s playground illustration. His point about liberty and security moving in tandem holds true – but it can cut both ways.
Suppose the police officer is not simply standing on the playground, warding off potential malefactors. Suppose he is also watching you: following you around, making notes, videotaping you, whispering into his microphone. Would you feel more secure then, or less?
Suppose the officer also tails you home. Suppose he follows you into your house and begins poking around in your closets, reading your mail, copying the contents of your computer’s hard drive, and taking notes about your dinner-table conversation with your spouse. Would you feel more at liberty, or less?
Just about anyone would find this highly unsettling. He or she would feel both insecure and inhibited: simultaneously less secure and less free. And that is how many people feel about the alarming expansion of government surveillance. It is, indeed, something the Founders understood when they wrote the Fourth Amendment, guaranteeing the “right” – the liberty right – of the people to be “secure” from unreasonable searches by government authorities. The Fourth Amendment treats security as a component of liberty, not its opposite.
Among other things, the Founders were concerned about “general warrants” – which allowed officials to search a person’s home and papers at whim. The Founders insisted that warrants be issued only for “cause,” and that they must describe “the place to be searched, and the persons or things to be seized.” But the NSA’s vacuuming up of millions of Americans’ telephone records cannot be justified by any particular cause. Rather than develop a suspicion and follow it up with a particularized search, the NSA’s metadata program conducts a general search first, and then examines the results for reasons to suspect someone in particular.
And the NSA’s metadata program is just one among a rapidly proliferating population of surveillance programs. Through another program, the agency also has access to roughly 75 percent of Internet traffic. For the past six years, the FBI has been building a $1 billion database of physical characteristics, from iris scans to palm prints. The Labor Department maintains a nationwide registry of new hires; states use it to track down deadbeat parents. The Department of Homeland Security has compiled data on credit card transactions, rental car information, and email contacts. Border agents are empowered to search, without a warrant or even suspicion, everything from laptop computer files to “pocket litter.” (The federal government defines the “border” for this purpose as 100 miles wide; that covers 197 million U.S. citizens.)
Across the country, police departments are amassing records of Americans’ ordinary movements through the use of automated license-plate readers. Twenty-seven states are using facial-recognition technology to match surveillance footage with DMV mug shots. Just recently, a federal court ruled police departments did not need a warrant to obtain your cellphone records.
These are just a few of the ways government is keeping tabs on Americans, and there are more coming down the pike – from the insurance-reporting requirements of Obamacare to the proposal that all Americans carry biometric ID cards to improve immigration enforcement.
Supporters of all this government surveillance sometimes say that “if you have nothing to hide, you have nothing to fear.” The fallacy inherent in that statement entails its assuming people want privacy only to hide what is incriminating. But privacy is about much more than dirty little secrets. There is nothing incriminating about a prostate exam or gynecology checkup, for instance – but few people would want to have one on live TV. Some things are simply nobody else’s business.
Increasingly, however, government acts as though nearly everything is its business – from your phone calls to your driving habits. And that’s what has people so concerned. Americans don’t mind the cop on the playground. It’s the one camping out in their living room that worries them.
This article originally appeared at the Richmond Times-Dispatch.