On Monday the Supreme Court declined a petition to expedite consideration of Klayman v. Obama. The plantiffs had sought to by-pass appellate review given the government’s “outrageous intrusion of privacy” confirmed by a Federal District Court’s finding.
Klayman is one of several cases focused on the government’s aggregation and analysis of metadata, as exposed by the Edward Snowden document releases. (Prior consideration by HLSWatch is available here.)
Since the December decision in Klayman at least one other Federal District Court has affirmed the constitutionality of actions that the judge in Klayman suggested would cause Madison to spin in his grave. A variety of related cases — and contending judgments — are working their way through the courts.
It would have been unusual for the Supreme Court to abbreviate the process. On this issue a fulsome set of legal engagements should serve to clarify key issues.
The political process around mass surveillance is also advancing. On March 25 the President outlined several reforms to how metadata is collected and accessed. The Republican Chair and ranking Democrat on the House Intelligence Committee have proposed their own reforms. There is also an effort underway to frame-up policy directions for the digital domain that go beyond a privacy-v-security binary.
The political context features several advocacy groups, such as the ACLU and EFF, pressing for privacy rights; several commercial organizations including AT&T, Verizon, Google and Facebook reluctant to be identified as co-conspirators in invading consumer privacy; and a mainstream media keen to cover any source of conflict.
At least in the United States there is deeply divided public opinion. For example one January poll found that 48 percent of respondents approved and 47 percent did not approve of tracking phone calls for potential terrorist links. Roughly twenty-percent of those who approved of the phone tracking also agreed the program is “too much intrusion into Americans’ private life”. This tracks with what seems to be increasing concern that “anti-terrorism policies” threaten civil liberty, even as support for specific anti-terrorism activities remains strong.
|TREND: What concerns you more about the government’s anti-terrorism policies, that they have gone too far in restricting the average person’s civil liberties, or that they have not gone far enough to adequately protect the country?
Jan 09 Oct 01 Aug 02 Jul 10 Jan 14
2014 2013 2013 2013 2010
Gone too far 51 43 46 45 25
Not gone far enough 33 40 39 40 63
DK/NA 16 17 15 15 12
Are these public attitudes contradictory… ambivalent… paradoxical? Are these the ill-considered judgments of a poorly informed mass or a signal of profound crowd-wisdom?
Our intellectual culture is (mostly unconsciously) influenced by Hegel (abstract, negative, concrete or sometimes thesis, antithesis, synthesis and more). The law is especially Hegelian in its dependence on the adversarial process. Well beyond the law we are inclined to engage contending perspectives in search for ideal solutions. For some this ideal emerges from historical (empirical) context. For others there is an ideal that transcends history and experience. In either case there can be a tendency to exclude or negate one option in order to achieve an other.
It is worth noting this is Hegelianism without Hegel who wrote, “Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights.” But much of our current discontent with so many aspects of politics, law, and governance may very well emerge from an intellectual conceit that seeks the best and disdains the rest.
If you characterize an issue as privacy versus security, I will probably lean toward privacy. To acknowledge this predisposition can be helpful. It ought not be confused with thought. First principles inform but very seldom resolve our problem-solving. Thinking requires an examination of context and contingencies and potential consequences.
Privacy and security are not necessarily in conflict, as for example in the language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
When privacy and security are perceived to be in conflict, what is the source of conflict? What are the contingent Goods that an active instance of privacy or security seems to threaten? For surely neither privacy nor security are ends-in-themselves. Rather each are aspects of a more comprehensive Good or Goods. Can we articulate our valuations to each other so that we might resolve the perceived conflict by directly addressing the goals which privacy and security are thought to advance (or retard)? Are we disagreeing over first principles or tertiary techniques?
Issues of privacy and security are clearly being considered as matters of law. In these legal considerations ancient ethical concerns are referenced and there will clearly be contemporary ethical implications whatever the legal outcomes.
The current political arguments strike me as mostly rhetorical rather than ethical. Typically absolute rights or obvious needs are assumed much more than demonstrated. Strawmen are set forth by every side.
In both the legal and political domains the consideration tends to be adversarial — pseudo-Hegelian — in method. I have no objection to this as one of several methods by which a shared understanding can emerge. I am concerned if it is the predominant method.
Where do you participate in serious and sustained consideration of important ethical issues? Especially civic issues such as the matter of privacy v. security? Where and how have you seen non-adversarial methods generate practical solutions?
I hope your answers are more fruitful than my own. If not, I wonder how much the paucity of such approaches suggest a social-civic anemia for which our current political confrontations are but a symptom?