This week, in response to the leaked draft of an opinion by Supreme Court Justice Samuel Alito that would overturn Roe v. Wade, Vice President Kamala Harris issued a warning about the dangers posed to Americans' rights in the absence of firm protections for privacy. It was a strongly worded statement of principled support for people's rights to make personal decisions and shield their lives from state interference. Of course, as with all matters of principle, if taken seriously Harris's words have implications far beyond the specific issues at hand.
"The rights of all Americans are at risk," Harris responded to the leaked draft. "If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life."
"Roe ensures a woman's right to choose to have an abortion," she added. "It also, at its root, protects the fundamental right to privacy."
As a supporter of bodily autonomy and of choice on abortion, I couldn't agree more. Other people, libertarians included, come to different conclusions, but I see choice as a "subset of the venerable and longstanding right of bodily integrity," in Damon Root's words. But if the right to choose whether or not to carry a pregnancy to term is a subset of a larger right, that means the same concerns must necessarily apply in many more areas of life.
"The Centers for Disease Control and Prevention (CDC) bought access to location data harvested from tens of millions of phones in the United States to perform analysis of compliance with curfews, track patterns of people visiting K-12 schools, and specifically monitor the effectiveness of policy in the Navajo Nation," Vice reported the same day the vice president endorsed the right to privacy. The data was purchased with the COVID-19 pandemic used as a justification, but the CDC had more general uses in mind that could continue into the foreseeable future.
The CDC is hardly the first government body to track people's movements through their cellphones; the FBI, Immigration and Customs Enforcement, Border Patrol, and other federal, state, and local agencies do the same. The data they purchase is supposed to be anonymous, but it's not difficult for officials to connect cellphone movements to actual people unless those targeted take steps to shield their identities.
In broad terms regarding such tracking, but especially after pandemic-fueled debates about contact tracing, vaccine mandates, and monitoring those who haven't had the shot, it's refreshing to hear Harris concede that "If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life."
And why stop there?
"A new transparency report from the Office of the Director of National Intelligence (ODNI) shows that from December 1, 2020, to November 30, 2021, the FBI used its Foreign Intelligence Surveillance Act (FISA) powers to search the communications of up to 3,394,053 Americans without a warrant," Reason's Elizabeth Nolan Brown wrote just last week.
What makes the report even more mind-boggling is that it comes after years of such stories of domestic surveillance by the CIA, the FBI, and, of course, the NSA as famously revealed by Edward Snowden. All of this internal snooping has been justified by the bogeyman of the moment, whether radical-Islamist terrorists post-9/11, or "domestic extremists" in the current environment of national fracture. Inevitably, it results in violations of the civil liberties of the designated enemy of the moment.
"Infringing upon constitutionally-given freedoms in the name of national security is not limited to the Muslim Americans in the present day; rather, practices including the use of confidential informants, undercover operations, and entrapment are part of the history of surveillance operations conducted by U.S. law enforcement," Oxford University's Sara Kamali pointed out in a 2017 article for Surveillance and Society.
So, again, it's heartening that a high official reminds her colleagues that "if the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life."
Personal decisions are, necessarily, personal and can cover extremely sensitive issues such as our taste in intoxicants and our ownership of the means of self-defense. These are both matters that, if exposed to government scrutiny, can make people targets for abusive officials.
"Like too many jurisdictions, Hawaii requires gun owners to register their firearms," I noted in 2017. "Also like an excess of other control-freaky places, the state requires medical marijuana users to register themselves with the state Department of Health.… Honolulu residents who legally complied with requirements that they enter themselves in both registries have received threatening letters signed by officials including Honolulu Police Chief Susan Ballard." The letters informed recipients that they weren't allowed to own guns so long as they used marijuana.
Under public pushback, Hawaii officials seem to have quietly softened the rules a bit, allowing cannabis users to keep existing firearms but not purchase new ones. But the whole issue would be better addressed by denying government officials knowledge of who uses marijuana, owns guns, or any other potentially sensitive topic. The situation is a demonstration of the validity of Kamala Harris's warning that "if the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life."
And in what area of life is our privacy more regularly invaded by the state than in our finances? In order to seize a sizeable chunk for the government, the IRS forces us to disclose our wages and other income, and delves into our dealings with businesses, banks, and (when it can) each other. Even so, nosy and cash-hungry officials always want more information so they can try to take a bigger cut.
"Imagine living in a world where every one of your non-cash financial transactions—a restaurant meal, a Venmo transfer to a friend, maybe some bitcoin bought on the dips—was automatically reported to a beefed-up, audit-hungry IRS," Reason's Matt Welch cautioned last year about Biden administration proposals to further expand domestic financial surveillance.
Again, we would be so much better off if we took seriously the vice president's words about protecting the "rights of all Americans." Let's welcome her endorsement of privacy protections as a shield against government interference in our personal decisions. As we do so, let's apply those protections against the state as widely as possible.
The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.