We now have two equally potent court rulings about NSA meta-surveillance on the books. Unfortunately, they’re complete and total opposites of each other, drawing exactly the opposite conclusions from very similar arguments. In D.C., Judge Richard Leon said the controversial surveillance programs revealed by Edward Snowden were unconstitutional violations of the Fourth Amendment, in part because they violated the privacy of Americans without much in the way of due process, and the government could make no compelling case that meta-data surveillance (basically, painting a picture of your activities by reviewing the use of your cell phone) was either vital or demonstrably effective as a terror-fighting tool.
But then in New York, Judge William H. Pauley said the exact opposite: there is no reasonable expectation of privacy for cell phone metadata, because (unlike the content of the actual phone calls) the activity logs are actually the property of cell phone providers, not the end users. Pauley didn’t seem to think the government had to offer a strong case for the effectiveness of the program to pass Constitutional muster; on the contrary, he thought the arguments against the program largely amounted to what-if scenarios.
The conflict between these two rulings, which will probably end up rumbling through the Supreme Court if Judge Leon’s is not overturned on appeal, captures the essence of the public debate over our surveillance state. Some people are outraged by the very concept, believe the government should have firm charges and specific warrants in hand before undertaking surveillance, and don’t trust the government to police itself. They wonder how voters are supposed to make intelligent judgments about programs whose details remain classified.
Other Americans are relatively untroubled by largely hypothetical violations of their privacy, keeping their outrage in check until documented cases of serious abuse are brought to their attention. They’re more concerned about the threat of terrorism than the possibility some NSA analyst will trace their movements from a year ago by rummaging around in their cell phone metadata. The lingering question of whether these programs have been effective – which is very difficult to answer without exposing classified data and jeopardizing ongoing operations – has considerable bearing on the public’s tolerance for them, but it might also be possible to get many Americans on board by making a convincing case that such surveillance could be a crucial tool in times to come.
There is also an echo of the tension between aggressive government and imperiled liberty here. Wherever one comes down on the matter of NSA surveillance – I confess myself skeptical but not unalterably opposed, maybe a little bit doubtful that serious terrorist organizations are going to do a lot of plotting via cell phone or email in the future – the old era of government being obliged to justify every expansion of its power, every intrusion into our privacy, is gone. We’re now playing defense, compelled to explain why each remaining scrap of freedom or privacy should be kept in our hands, when there is so much more the State wants us to do, so much more it wants to know about us. It’s all presented as being for our own good, from counter-terrorist operations to centrally planned health insurance.
Maybe there’s no way to get that genie back into the bottle. Too many people have internalized the notion that government’s intentions can be trusted, its internal checks and balances are in good working order, and there is no reason to allow abstract notions of inalienable individual rights to interfere with concrete benefits promised by each new expansion of government.
In the matter of NSA cell phone meta-surveillance, it could be said that anyone truly worried about invasions of their privacy can simply choose not to have a cell phone. But that is an increasingly difficult choice to make in a competitive, interconnected world.