June 30, 2013
The United States faces a crisis of confidence over the "right to privacy." The leaked revelation that the National Security Agency has engaged in "data mining" of phone records has resulted in an uproar that crosses ideological lines. The leaker, Edward Snowden, is reviled as a traitor by some, but a sizable number of Americans embrace him as a courageous whistleblower. Sen. Rand Paul's filibuster involving the government's use of surveillance drones also drew cheers from many Americans.
And let's not forget government surveillance cameras, which are spreading rapidly, along with cameras used by businesses. Cameras enabled authorities to identify quickly the Boston Marathon bombers, which was a good thing. But the bombing incident also demonstrated that Americans can't go anywhere in an urban setting without being watched.
On the Internet, personal information is available to anyone through a few keystrokes at a computer. Huge corporations compile data on the most intimate aspects of a person's life. People's movements throughout the United States can be tracked on their cell phones.
Is "Big Brother" watching you? Absolutely.
Big Brother can be the government, corporations, or an alliance of both. Some would say this is a good thing, as long as the surveillance and information gathering protects citizens from terrorism and other crimes, or improves the quality of life through enhanced communications. Others say governments and corporations are misusing, or will misuse, the information they gather, and damage American rights and freedoms in the process.
One thing seems certain: The current "privacy movement" will grow stronger. It has a potential to reshape the nation's future politics as profoundly as the labor or civil rights movements reshaped the politics of the past.
The "right to privacy," or the "right to be let alone," has its origins in English Common Law, but it wasn't until 1965 that the it attained constitutional status in the United States.
In overturning a Connecticut law that outlawed contraception even among married people, the Supreme Court in Griswald vs. Connecticut ruled that the "penumbras" and "emanations" from other aspects of the Constitution, most specifically the First, Third, Fourth and Fifth Amendments, created a de facto constitutional right to privacy. The court used the privacy precedent eight years later in Roe vs. Wade to overturn state abortion laws.
Penumbras and emanations weren't sufficient for Floridians, and in 1980 voters added an explicit privacy right amendment to the state constitution that declares: "Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein." Last year, voters easily defeated a proposed constitutional amendment that would have weakened Florida's right to privacy.
The privacy issue has created some strange bedfellows. When conservative radio talk show host Rush Limbaugh found himself in a legal fix in 2004 for alleged "doctor shopping" for prescription drugs, the liberal ACLU came to his defense. It claimed Palm Beach County legal officials violated Limbaugh's state constitutional right to privacy, as well as Florida statutes, when they seized his medical records.
The drone issue, NSA data mining, and other controversies have stirred passions on both sides of the political spectrum. The far left is aghast at privacy rights abuses, real or potential. They can't seem to grasp the fundamental truth that the creation of leviathan government, ipso facto, means the loss of privacy and individual rights. On the right, small-government, libertarian conservatives are equally aghast at the loss of privacy.
It's not inconceivable that this mutual "aghastness" could grow into a third-party movement. At the very least, the privacy debate will enhance the currency of the libertarian cause.
Politicians need to get ahead of the curve. The Florida Legislature should put to the voters an amendment that would expand Florida's privacy right amendment to include "non-government" intrusion as well as "government" intrusion into private lives. The Legislature and local elected commissions must set strict rules about when and under what circumstances surveillance drones can take to the sky.
Regulations should include privately owned drones, as well as those operated by government agencies. And citizens should ask whether the growing number of government surveillance cameras are helping to turn George Orwell's dystopian novel, Nineteen Eighty-Four, into reality.
The privacy movement is raising a fundamental question: Are we trading liberty for security, and if we are, will we end up with neither?
Kingsley Guy's column appears every other Sunday. Email him at Harborlite3@bellsouth.net.
Copyright © 2013, South Florida Sun-Sentinel