As recent polls suggest, a majority of Americans are not alarmed by the fact that the National Security Agency (NSA) is collecting all of our electronic communications, from phone conversations to email messages and internet searches. “After all, if I haven’t done anything wrong, then why should I even care if they read my email? Isn’t this just the price we must pay to keep us safe and sound against those who may be plotting a terrorist attack?”
Sound about right? The logic here is, indeed, very practical. But is it prudent? Let me approach the latter question indirectly through an analogy with our justice system.
Jeremy Bentham, the famous Nineteenth Century British philosopher, once advanced an intriguing argument against having a rule of confidentiality between lawyers and their clients. Argued Bentham, if a client is innocent then why should he fear that his attorney might breach his legal confidences? He has done nothing wrong, so why should he even care? On the other hand, if he is guilty, then why should he be permitted to hide his guilt behind a cloak of confidentiality? Thus, concluded Bentham, we are greater gainers by having a legal system in which clients are not afforded confidentiality by their attorneys.
Now, Bentham’s view is quite unpopular among the leading minds in American jurisprudence and, among the literally thousands of US students who have taken ethics with me, there have been few to none who would agree with Bentham’s position. So, I am reasonably confident that most Americans would disagree with Bentham’s position that we should get rid of lawyer-client confidentiality; and there appear to be very cogent reasons for disagreeing with him.
For one thing, many clients, especially those who have previously had negative encounters with the law, might be reticent to disclose the facts of their cases to their attorneys if they thought that what they disclosed could be used against them. Moreover, a client might not have been guilty of the crime for which she has been charged; she might instead have been guilty of some other unlawful act, perhaps a lesser offense. In such a situation, a client might well be reticent to disclose the pertinent facts to her attorney if she thought that these facts would subsequently be revealed to the court. So it would seem that, at the end of the day, even with its faults, a legal system with lawyer-client confidentiality is better than one without it; and, even if the guilty can and do sometimes—let’s be honest, quite often--use it as a shield to get away with murder or other heinous past or future crimes.
Now here comes (the less popular) analogy: It is likewise not worth giving up our privacy even if (and this is clearly an assumption), without it, some terrorists could more readily be exposed before they had an opportunity to carry out their plots. Moreover, just as a legal system without confidentiality chills off client disclosure, a society without privacy chills off open communication. Well, suppose that you have an important piece of information about government corruption and want to get it out to the media so that something could be done about it. Suppose that the corruption involved high ranking politicians who were endangering the lives of many innocent people through their illicit conduct. Would you be less reticent to contact the media by phone or put it in an email message if you thought the government would have access to your communications?
Suppose too what is probably true: while you are not a terrorist or some other serious offender who poses an imminent threat to others, you have done some relatively minor things that are still illegal. Suppose also that your personal emails or phone conversations could, if examined, incriminate you. Perhaps you are now thinking that the minor offense would get lost in the shuffle of the mass of data being collected and that therefore there is, realistically, nothing to fear. After all, why would the government start looking at your messages when they are like the proverbial needle in the haystack?
But did you really stop to think about how this mass of data might be connected? Suppose you make a phone call to John who calls Mary who calls Ted who calls Martin who calls Sally…who calls Jack, whose brother has associates who are suspected terrorists. Never mind that you are the last person in the world to commit a terrorist act. You are now linked in the NSA database to others who are terrorism suspects. Are you now a bit more uncomfortable about your minor little illegal indiscretions? Maybe even a little?
Keep in mind that, since the enactment of the Patriot Act, collection of information during a terrorism investigation that is related to an entirely different criminal activity, can still be used to prosecute you. Consider also how easy it would be for this entirely “legal” surveillance system to escalate “the war on drugs” as well as the “war on terror.” Just think of how much more money the state could make by nabbing the pothead through her email and phone conversations. A relatively simple algorithm containing the key words “weed” and “smoke” could easily be added to the ones already containing the word “terrorist” in order to parse through the masses of messages looking for illegal drug activities.
Still so sure that we should be giving up our privacy rights in order to catch some terrorists? Again, this question assumes that the surveillance system now in place can be as good at catching terrorists as it can be at catching potheads. (The former are generally not as likely to leave their calling cards on the net.)
Now here’s the crux of the analogy: Just as the legal system needs confidentiality to keep it running smoothly, so too does our society need privacy to keep it running smoothly. Civil liberties are not expendable options. They are essential conditions of a satisfactory life in common. So if you think that confidentiality is essential for the justice system, then it behooves you to likewise defend privacy as an essential part of our social system; and this is no more apparent than in our network of online interactions.
This is why drawing a line in the sand is crucial. Moreover, technologies are being developed, at an ever accelerating rate, which have the potential to become more and more intrusive, and these technologies are quietly becoming part of everyday life. Our cell phones allow us to be tracked, and most of us don’t seem to mind. Of course, we can always turn off our cell phones if we don’t want to be tracked, and that possibility might be consoling to at least some. So why not permanently implant a chip inside each of us so that government can track our every move? Already, RFID chips are being implanted in some populations such as inmates and those with dementia—not to mention the family dog. If everyone were chipped, couldn’t government do a better job protecting us against potential terrorists? And why not add a remote control feature, while we’re at it, so that, if we are about to do something the government forbids, it can automatically stop us in our tracks. That surely could foil a terrorist plot!
The slide down this slippery slope is gradual, but we are definitely on our way down. So is there a point at which we say privacy really is, after all, important; a point at which we say enough is enough? Or are we simply in denial? It is much harder to turn back the clock once privacy is no longer a social value that we care to preserve. Unfortunately, it appears that we are beginning to reach that point in America today.