ACLU Interview

I mentioned in the post below the Andrew Cohen Atlantic interview with Jameel Jaffar and Brett Max Kaufman of the ACLU, but want to make sure that you are reading it.  It is a very clear and cohesive message of what citizens should not tolerate, and well as a steady-handed evisceration of people who think there is much daylight on this issue between George W. Bush and Barack Obama.    This last part, I think, is hugely important, but do read the whole thing.  (Disclosure: Brett is a good friend of mine.  I’d be interested in this anyway, but even more so when it is delivered so handsomely!)

Anything else you think is important?

In his recent speech at National Defense University, President Obama made a compelling case for the democratic necessity of bringing the nation’s wartime approach to terrorist threats to an end. That necessity applies with equal force in the context of domestic surveillance. Just as President Obama belatedly acknowledged the long-term consequences of short-sighted policies governing the use of drones and other lethal force abroad, there are creeping but grave consequences to a democracy that surrenders its liberties one phone call at a time. Nobody chooses to live in a surveillance state, but a malfunctioning democracy can produce one. Restoring constitutional dignities to their historically privileged role in our system is the best way to defend it.

Our sliding expectations

So, in a private forum, some friends of mine and I were having a discussion about Snowden, Greenwald, and privacy.  The discussion turned to whether or not court-driven limitations on the spying programs made things fine, and a very smart friend of mine, the redoubtable Itzik Basman, replied thusly.

…”fine”can’t be as narrow, I’d argue, as what’s admissible in court. That’s epiphenomenal in relation to the whole issue of privacy, the idea of which is, in significant part, space between citizen and state and lies as as a big unstated idea grounding the U.S, Constitution.

I think that is a very interesting point, and one crucial to the discussion today, especially in light of polls that show large majorities of Americans are ok with the government spying programs.   Itzik is arguing, at least as far as I can tell, that there is an expectation and a right of privacy that goes beyond what is strictly given, and indeed it is (part of) what makes us citizens rather than subjects.

But how much of it have we given up?   How many of us are on Facebook, Twitter, Pintrest, have blogs, etc?    There is a slight selection bias here, as most people reading this were steered here by Twitter or Facebook or something, so we’re all pretty connected. (“No one I talk to on Twitter isn’t on Twitter” is a sentimental update on the apocryphal  “I don’t know anyone who voted for Nixon”).   But I think there is a reasonable expectation that the majority of people share things with others in, at the very least, a semi-public forum.   Everyone has a cousin that “never uses any of that”, but let’s be honest: your cousin is an outlier, and frankly, he drinks too much.   Look, someone had to say it.

So my question is: does this willingness to give up privacy in on sphere weaken that bond, that divide between citizen and state?  In an interview with Jameel Jaffar and Brett Max Kaufman of the ACLU in today’s Atlantic,  Andrew Cohen states that he doesn’t “know which America Jaffer and Kaufman are referring to when they declare that ‘no one chooses to live in a surveillance state.’ I think the American people, sadly, have chosen in countless ways to live in such a state. And I think the fact that we have done so is likely to animate the legal and political debate as this important lawsuit proceeds toward its resolution.”

I personally think that is a little unfair.  There is a difference between falling in love with new technologies and methods of communications and actively choosing to give up rights that we previously took for granted.   But if Cohen is right, and American expectations of privacy have been willingly, if not actively, diminished, does that weaken the cloak of privacy that we expect from the government?   The one that Itzik has said is beyond what courts decide?

Now, there is no way to measure this.  It is all feeling.  You could say that there was never a time when everyone wanted privacy, that there were panopticon fetishists  (yes, I know: your cousin again).    And, most importantly, I don’t think anyone ever assumes that their phone conversations should be public.  OK, everyone on the train believe that their phone conversations are a matter of public interest, but that is different than assuming that the government is listening in.

I don’t know the answer.  I know what I think, but am curious to hear other voices.   Does the rise, and easy acceptance, of social media, over-sharing, cameras everywhere, both public and private, and all that goes along with this particularly narcissistic time constitute a collective choice that our privacy doesn’t matter as much?  If so,  does that change the expectation of a barrier between government and private citizens?   And, I think most importantly, would you feel the same if al-Qaeda never existed?