And The Most Stalwart Critic Of Intrusive Surveillance Is… Antonin Scalia?

On the eve of the NSA surveillance leaks, it was the notoriously conservative Supreme Court justice who best explained why the Fourth Amendment matters.
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    U.S. Supreme Court justice Antonin Scalia smiles during his introduction before addressing the Chicago-Kent College Law justice Tuesday, Oct. 18, 2011, in Chicago. (AP/Charles Rex Arbogast)

    U.S. Supreme Court justice Antonin Scalia smiles during his introduction before addressing the Chicago-Kent College Law justice Tuesday, Oct. 18, 2011, in Chicago. (AP/Charles Rex Arbogast)

    The revelation about the massive NSA data-collection program has dominated the news this week. Sadly, a long line of Democrat officials, including Minnesota Sen. Al Franken and a certain former constitutional law professor — that’s President Obama — have been telling us that none of this matters.

    It does matter. An effort is being made to portray the NSA data as isolated, unconnected to anything, a routine program by experts who are keeping we simple people safe. But when we broaden the focus, it’s easy to see why it matters.

    A recent Supreme Court decision reveals how rights are eroded for the noblest of reasons, channeling power to corporations and the state at the expense of the individual.

     

    Recording your genetic data

    This past week the Supreme Court decided the case of Maryland v. King. Alonzo King was arrested in Maryland in 2009 for menacing a group of people with a shotgun. During arrest his DNA was taken and found to match that of a rapist from 2003. He was then duly convicted of the rape. No one has suggested he was innocent of either crime.

    The issue is taking that DNA sample and using it to match with other DNA samples from unsolved cases and (this is critical) doing so before there was any reason to suspect King of the rape.

    By a vote of 5 to 4, the Supreme Court thought this was fine.

    The majority opinion is full of warm-hearted prose about how this will speed up and improve the solving of crime and goes on at length about how the Maryland police needed the DNA to identify the suspect.

    Justice Antonin Scalia is certainly quite conservative. Unlike many contemporary conservatives, he still has principles and doesn’t always simply do what would serve the government and corporations. He is also known for forceful writing and ridiculing of views he finds unsupportable. In this case, he unleashed himself in a lengthy dissenting opinion.

    Scalia easily disposed of the nonsensical notion that Maryland needed the DNA to provide identification, since it wasn’t even processed until weeks after the arrest. But his main point was to call our attention to the Fourth Amendment to the Constitution. Since this lies at the heart of the NSA surveillance issue as well, it’s worth quoting in full:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Like many flat prohibitions in our Constitution, a series of exceptions has been created and expanded, especially since the 1990s.  But, as Scalia wrote, “the Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception.”

    But the courts and the government have made many exceptions. In fact, the amendment is no longer read as prohibiting warrant-less searches at all. Instead, a notion of “balancing” has been accepted — where the right to be free from searches is balanced against various interests of the state. Searches without warrants are used in schools, prisons and all sorts of places where such a need has been identified. Warrants are not needed for mandatory drug testing of groups of people nor to authorize home visits by social workers.

    Moreover, the sphere of what is private continues to shrink. You have less right of privacy in your car than in your home. And it appears we’re well on our way to deciding that cell phone calls, emails and texts are not private at all, but fully open to the entire public.

     

    Tyranny by the compassionate

    Threats to our liberties are generally couched as though it was only the government we had to fear. But the truth is that our civil liberties are being eroded by those campaigning for the oppressed also. The problem is that civil liberties include many different issues and protecting one liberty often involves inconveniencing someone.

    Nowhere is there a better illustration than in this case where a series of amicus curiae briefs were filed in support of Maryland’s program of DNA testing.

    One of the most revealing briefs came from the Maryland Coalition Against Sexual Assault, who identifies itself as “advocating for accessible, compassionate care for survivors of sexual assault and abuse.” The coalition includes rape crisis centers, “concerned individuals, survivors of sexual violence and their loved ones.”

    Their brief piles on the statistics about the frequency of rape not just of adult women, but of children and the elderly, and goes into detail of its devastating effects.

    The brief dismisses any notion of civil liberties, arguing that the “state’s interest in solving sexual crimes should outweigh privacy considerations.” It presents example after example of cases of sexual assault solved by DNA. Indeed, every reference to the Fourth Amendment is simply waved away because of the bright new future DNA testing will bring, and the implication that opposing these practices can only mean that you don’t much care about the victims of sexual crimes.

     

    What’s the problem?

    No doubt many agree with their point. After all, as the saying goes, if you’ve done nothing wrong, you have nothing to hide. The Maryland coalition would probably be shocked and insulted to have anyone describe them as undermining civil liberties.

    The problem is that violating the constitution for worthwhile purposes is generally followed by violations for sinister purposes, and even more often by violations by sheer incompetence.

    Yes, solving rapes is a good idea. And if databases were always perfect, and if you could see the information and correct errors, that would be even better. But they’re not. Anyone remember the “no-fly” list? Anyone ever had an erroneous credit report? Or have their identity stolen?

     

    Back to the NSA

    So how long will it be until somebody wants to use all that lovely metadata in the NSA servers to find deadbeat dads, or runaway teenagers or spouses having affairs? And many will say that’s a good idea, because, once again, if you’ve done nothing wrong, you have nothing to hide.” But it won’t stop there.

    Employers are already demanding to see what employees post on Facebook, while running their credit reports to see if they like how employees spend their money. The NSA data could help businesses discover which of their employees are looking for new jobs, or talking to ex-employees or reporters.

    And if the NSA’s data managed to get linked to the DNA and  fingerprint databases, even more crimes could be solved — potentially including the crime of disagreeing with the policies of the government, or your employer.

    And many will say there’s nothing wrong with that either. Until there’s a mistake.

    And yes, then you will be able to demand corrections. All it will take is you fighting a multimillion-dollar corporation and its team of lawyers, and will probably only take a few years to see justice done. You’ll spend many times your annual salary, and in just five or seven years, you might even win a judgment and partial payment in compensation.

    It’s not the atypical instances of abuse; it’s the fear of being abused. This produces a chilling effect. You will self-censor your anti-government opinions, your outlandish views, your personal needs just in case it gets into a database and just in case someone decides to use it against you.

     

    The final word

    At the end of his opinion, Scalia wrote:

    Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

    But as would be revealed just days later, the NSA already had a panopticon.

    The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News editorial policy.

    The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News editorial policy.

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