Blog and Mablog
A policeman doesn’t need a warrant, and shouldn’t need a warrant, to look at your house. But there is more to it.
I have noted before that many contemporary Americans are demanding privacy when what they really want is anonymity. But these are not the same thing at all. If I am walking down a city street with thousands of others, I have anonymity. I don’t have privacy. Anybody who wants to can look at me — the next guy who passes by, the cop on the corner, or the surveillance camera outside the jewelry store. And the cop has every right to follow me if he saw that I have that look on my face.
But what the digital revolution has done is create a need for some radical extensions and applications of our definitions of “inside” and “outside,” not to mention “public” and “private.” Just as I don’t mind a cop seeing the outside of my house, I don’t mind him seeing the outside of my phone. But when is he “inside”? When does he need a warrant? When does he need to show a judge probable cause? If the answer is “we don’t really do that anymore,” the follow-up retort should be “because we are now slaves.”
But in order to have due process in this, we have to define the border between public and private. This is not a trifle — our future liberty depends upon it. How we define those lines, and how we enforce them, must not be left up to secret and unaccountable courts. This is because any state that catch terrorists all in secret can create terrorists all in secret.
This is what it looks like when there has been a breakdown of trust. There may be certain things that the magistrate could arguably have every legal right to do, but which draw suspicion (rightly) nonetheless. For example, police have the right to stake out a house without a warrant, so how could this ever cause suspicion? But what if they are doing so in order that they might know when the owner is away so that they can go in there and plant some evidence? That would be an abuse of their prerogative, and if we know the nature of man, we need to have some protections around that prerogative, to the extent that we still allow it.
So the problem is not the possession of the metadata itself, which is kind of out there, but whether or not it puts unaccountable authorities in possession of an ability to get into your cyber house without anybody ever knowing that they did so. If the cops are staking out your house from across the street, there is the possibility you might see them. Who doesn’t think that these people have the capacity to plant child porn on your computer so that they can have something to haul you away for?
And we live in a time when we have every reason to believe that if such security ginks abused their position in this sort of way and were caught, the political uproar that followed would have the same trajectory and outline as the IRS scandal has had. This means that we ought not to do it.
The defenders of metadata collection say that it is like looking at you walk down the street. If you didn’t want to be seen you shouldn’t have taken that stroll. If you didn’t want people to know that you had made a call, you shouldn’t have made it. Up to a point, they have a point.
But if they are watching, and no one knows they are watching, and they are accountable to no one for their watching, the first conclusion I come to is that somebody ought to be watching them.
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