Fear, the illusion of safety, and the right to privacy

by jimowensjr

“I always feel like, somebody’s watchin’ me” –Michael Jackson


As concern continues over the public health and economic impact of the COVID-19 pandemic, a number of tangential issues have arisen which may result in an even greater long term impact to our nation. Some of them, such as innovations in our supply chains, changes and expansion of restaurant operating models, digital communication, and remote work may well prove to be beneficial. Others, such as the impact to the mental, emotional health, and physical health of Americans, the implications for the poor and other marginalized groups, mass unemployment, and the financial condition of the U.S. federal government, will likely prove negative. That said, one potentially insidious adverse impact may be further erosion of our right to privacy.

Although the U.S. Constitution holds no specific reference of a right to privacy, the Supreme Court has understood its existence by virtue of many of its decisions when the state has no compelling interest—such as a clear and present danger—to otherwise limit such rights. Their decisions in such cases as Greenwold vs. Connect, Roe vs. Wade, Eisentstadt vs. Baird, and Lawrence vs. Texas serve as a few landmark examples. Yet in times of national crisis—that is when we are afraid—Americans seem more than willing to relinquish their rights to privacy and other Constitutional rights without regard to their long term consequences.

Most recently, the Patriot Act was hastily passed only 45 days (and later renewed with some amendment) after the horrific events of 9/11. Ostensibly, that legislation was designed to make the collection of data easier for law enforcement to identify and prevent potential terrorist activity. It gave federal law enforcement officers the power to issue National Security Letters (NSLs) to obtain bank, computer, phone, and credit history records without a subpoena and allowed it to be retained indefinitely regardless of a subject’s indictment, much less conviction of conspiracy to commit or actually carry out terrorism. Yet Patriot Act does not stand alone in regard to the infringement upon our rights to privacy.

With the passage of the Foreign Intelligence Surveillance Act in 1978, whereby the Foreign Surveillance Intelligence Court was established, Congress broadened the power of the federal government to peer into our lives with little justification. And with the historical evidence for abuses by the FBI—an institution for which I have great respect—its abuse of FISA warrants by overzealous and irresponsible players has been well documented. And long before abuse, we should be reminded of J. Edgar Hoover’s practice of building and maintaining dossiers on individuals he deemed to be a threat to his own sense of what it meant to be a loyal American.

Legislation alone has not been a source of our willingness to have our freedoms eroded for the illusion of safety or even convenience. We willingly allow our internet searches to be collected by Google, Yahoo, and search engines. We grant “location services” access in the privacy function of our phones without regard to how that data is being used. And we wander about—or did before the pandemic—our communities where we are being filmed dozens, perhaps hundreds of times daily.

The initial imposition of stay-at-home orders by state and local governments, though well-warranted by the compelling state interest of public health, however, are now being expanded. In Philadelphia, law enforcement officers have forcibly removed a man from a public bus for failing to wear a mask. In Los Angeles, the Mayor has created a reward system for reporting violators of social distancing guidelines. In Michigan, the governor has expanded her initial executive order to limit further limit travel into and around her state. Meanwhile, the federal government is contemplating electronic contact tracing methodologies which, while intentioned, might become an even more invasive look into our personal lives.

We may comfort ourselves with the notion, we have nothing to hide. We may trust those of our particular political persuasions to act nobly in the application of law, while distrusting those who do not. And we may believe in the inherent integrity of all law enforcement officers, believing we might never be falsely accused of misconduct. But history, both domestically and internationally, should tell us such trust is misplaced. And we should remember that the Constitution, with its balance of powers, was meant to protect us from tyrants and the tyranny of the majority.

Our rights to assembly, speech, freedom from unreasonable search and seizure, interstate travel, and privacy, must be vigilantly guarded, lest we become proverbial frogs in a boiling pot. The institution of policies designed to stem the tide of this pandemic, where our freedoms are limited, must not be hastily adopted out of fear. (For fear is what gave America the McCarthy Era and caused the internment of more than 120,000 individuals of Japanese descent during WWII.) And they should include specific conditions by which they expire. Without such clarity and vigilance, we may all one day decide George Orwell was not just a prophet when he penned 1984, but that he was an optimist. Let us not give into such fear that would lead us to such a conclusion.