By Kent Willis , Executive Director, ACLU of Virginia
Don’t look now but over the last twelve months, as the nation debated how best to protect our liberties while waging war on terrorism, our privacy rights were quietly stolen away.
The Bush administration and Congress did the dirty work, but the real culprit is us. For we, the people, allowed this to happen right under our noses. In many ways, you could say we even asked for it.
It wasn’t always like this. For a decade leading up to September 11, 2001 , the threats to our privacy came largely from the government’s usual thirst for information about our private lives, combined with the rapid development of new technologies that made interception of communications and the collection of data faster and cheaper than ever.
Fortunately, most of us cared enough about the constitutional principle of privacy to resist the urge to force-feed Big Brother. Even those who did not have a keen sense of privacy at least had a healthy suspicion that government powers ought to be held in check.
This created some odd but effective bedfellows, such as the ACLU and Republican majority leader Dick Armey, who joined forces to fight facial recognition cameras on public streets. Or the broad coalition of groups that opposed bills requiring national identification numbers for every person.
Now, though, with a new, powerful and utterly unpredictable enemy residing in some mysterious place, we feel more vulnerable and uncertain than ever before. As a result, we have put our trust in the government to protect us more than ever before.
Congress responded by giving us the USA Patriot Act, a sprawling new law that, among many other things, makes wiretapping as easy as uttering the word “terrorism.”
John Ashcroft’s new guidelines on domestic spying are really just a lifting of the old rules adopted to stop the abuses of J. Edgar Hoover’s FBI. Hoover had spied on (and threatened) completely legitimate organizations and individuals solely because he disliked their politics. Ashcroft’s guidelines allow the FBI, without any suspicion of criminal activity, to infiltrate churches, social gatherings and Internet chat rooms.
About the only thing that the FBI cannot do now is be everywhere at once.
Leave it to the Bush administration, though, to come up with a way of overcoming that obstacle. The new TIPS program, or Terrorists Information and Prevention System, is designed to train “millions” of ordinary people to be the ”eyes and ears” of the government in the workplace and in our homes.
These are not insignificant changes. Together they amount to probably the most concentrated erosion of privacy rights in our history.
Through all this, no one in government has really bothered to explain exactly how our loss of privacy is supposed to stop terrorism. Every evaluation of the flaws in the system leading up to September 11 points to design and communication failures as the main problems, not the reasonable regulations placed on domestic spying by government agencies.
Privacy has always been something of a stepchild in the family of constitutional rights. Although interpreted by the courts to be one of our fundamental rights, it is not mentioned by name anywhere in the Constitution or its amendments. And because it is a passive right, felt only when absent, it tends to get less attention.
Perhaps this is why it became the first constitutional right in the post-September execution line. Whatever the case, we should all be concerned that what has happened to privacy can also happen to other rights.
Historically those in government are inclined to believe that order and safety can best be maintained when the state knows what everyone is doing, when there are no dissenting voices, and when the police have unfettered power to enforce the law.
Our nation’s founders understood these tendencies and looked to counteract them with the Bill of Rights. Citizens could only be free if they could demand, among other rights, their privacy, free expression, and due process of law.
There is always tension in this system, but it was designed that way, and generally we do a good job of balancing the desires of the state with the liberties of the people.
The true tests of our system come when the chips are down. In a 1972 Supreme Court decision, Thurgood Marshall wrote "This country stands tallest in troubled times… [it is] a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system."
Thirty years later, sitting in the shadow of September 11 and watching what we have allowed to happen to our privacy rights, one wonders if this is still true.
If we have learned anything since September11, it is that we are a resilient nation with the resources, determination, and creativity both to fight terrorism and to maintain our fundamental freedoms. But with the government doing most of the talking for the last year, it is our freedoms that have suffered.
It is time for us, the people, using our right to vote and our right to speak, to seek balance again in our constitutional system. And there is no better place to start than by demanding the return of the privacy rights we so willingly gave away over the last twelve months.