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. 

As Justice Antonin Scalia noted in his majority opinion in the 2012 Fourth Amendment case U.S. v. Jones (which decided that it violated the Fourth Amendment for the police to physically attach a GPS tracker to your car):

We have embodied that preservation of past rights in our very definition of "reasonable expectation of privacy" which we have said to be an expectation "that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."

It would be a shame if what happened in Boston alters that delicate structure of public opinion and attitudes toward "reasonableness" that shape when government will be permitted to encroach on our privacy.