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By Tom Cushing

Mike and Dianne and Bernie and Rand

Uploaded: Jun 10, 2013

At long last, we've found an issue that can unite House Republican leader Mike Rogers with our own Senate stalwart Dianne Feinstein, as well as libertarian Sen. Rand Paul and uber-liberal Independent Sen. Bernie Sanders – albeit in opposite corners of a strange, new political bed. The disclosure that the Feds are compiling massive volumes of surveillance data on US citizens has prompted a much needed debate on the right to privacy in an internet-addled world. How that conversation is resolved will have much to do with the nation we become.

Although facts continue to emerge, we seem to know this much: that the National Security Agency has records of your-and-my phone calls and on-line habits, dating back several years. Although I'd be embarrassed for The Brass to know just how prosaic My life is, I suspect a few of You may have reason for greater or different concerns. The point is this: is there a limit to the private places the government may intrude into our lives, even to pursue its own view of our protection?

The Right to Privacy that's in-issue here is a curious beast. Look for it in the Bill of Rights; it cannot be found there. Rather it was announced by the Supreme Court in a 1965 case that challenged the right of the State of Connecticut to enforce its law banning the use of contraceptives (how times change!). Justice Douglas concluded for a 7-2 majority that if you roll-up parts of the First, Fourth and Fifth Amendments into a ball and consider what they stand-for, it's something like a right to privacy – that there are places in people's lives where the government has no interest (read: no business) going. The marital bedroom being one such location, the Supremes overturned the CT statute as a violation of that right to be left alone by the government.

The implication for our purposes here is that the NSA's sweeping, dragnet-style surveillance undoubtedly vacuums-up lots (and lots) of data that also qualifies as private = none of its business. In so doing, it raises similar kinds of "serve vs. protect" issues discussed hereabouts a few weeks ago.

The Protectors, including Mike and Dianne, tout the use of these data to thwart terrorist plottings, notably including a plan to attack the NYC subways in 2009. They also claim that the information itself is innocuous ("nobody's listening to your calls," promises The Prez), that it's fully authorized by the USA Patriot Act, and as such, involves multiple layers of judicial scrutiny.

Detractors like Rand and Bernie argue that dragnets are traditionally disfavored in the law because of their potential for abuse – that is, part of being a Free People ought to mean being free from government interjection into private lives unless there's a good reason, like "probable cause" that somebody did something wrong. The mere possession of all that data raises the potential for its miss-use – indeed, it practically begs for it.

They also note that there may be less to the judicial oversight than meets the eye – all-but-one of almost 2,000 requests for judicial authorization have been approved. At that rate, the court will need to replace its rubber stamp mighty soon. They also suggest that there are other routes to capture of wrong-doers that don't raise these kinds of Person-of-Interest concerns.

So whether you believe the government is actively venal (Paul) or just has potential so to be (Sanders), the programs ought to be severely circumscribed. Mr. Obama, fighting a rear-guard action, said he "welcomes the conversation" we are about to have on this topic. While that statement might actually be credible if he hadn't been forced to acknowledge those programs via yet-another Hated Leak, he IS correct that the conversation is timely.

I think the detractors have the better part of this argument. You don't set-up systems to have to rely on the goodwill of their administrators to prevent abuses. Even the best of those administrators too-often come to over-trust their own judgments, made as they are in a cloister of righteously like-minded individuals. Giving much benefit of considerable doubt, it may be that the IRS functionaries who targeted Tea Party filings were so remarkably blinded. As to the worst administrator instincts, does the name J. Edgar Hoover ring a bell? We shouldn't have to rely on fragile discretion or the absence of malice. I'm reminded of one of the great sound-bites of all-time: a civil rights advocate who was asked whether he trusted the President (Mr. Reagan, at the time), replied "I trust my mother." That's Perfect -- me, too.

In an important way, this situation follows from the theme of Mr. Obama's speech last week. In it, he called for a recasting of the War on Terror – a perpetual war-footing raises dangerous risks for the very civil liberties that Americans hold dear, and that make this land "exceptional." The Patriot Act that enabled these surveillance programs was passed early in the post 9/11 wartime era. It went too far in facilitating this kind of intrusion into the privacy of everyone, and it needs to be substantially narrowed.

Paul Krugman made a salient point on one of the Sunday morning shows, crediting an article in a Yale publication. It was to the effect that the technology is out there; it will be used. The question is whether we choose to make it the Servant of a free society in the open, or the Master -- in secret.

Synopsis: Government data-gathering authority under the Patriot Act has shown itself to be too broad, and needs a good narrowing to protect the privacy of everyone.