My take on the NSA, Privacy and Protection

Let me just say, I’m no lawyer and what follows is not legal scholarship.

Of all the reading and listening I have done regarding the spying by our government via electronic data collection and storage, I have found nothing that specifically gets at the issue for me as to why it’s not a good thing.  This is mostly because the common response to defending such activity by our government falls into a couple of very broad moral concepts that are part of our cultural upbringing.  One is trust in the source of your protection. The other is self acknowledgment as being a morally conscious person.

Trust in the source of your protection is simply an aspect of experiencing parenting that is then extended to relationships external to the parent relationship as we mature.  The other, self acknowledgment as being morally conscious is culturally learned.

Thus we get “trust the government with protecting us” such that the data collection is not a problem and “don’t worry if you are not doing anything wrong” as simple answers to why this entire NSA issues is a none issue.   These answers have settled nothing.

Lack of trust creates all sorts of problems individually and for society. I’m not going to go there in this post.  I’m not going to go there because it seems this nation does not respond anymore to lists of harms and dangers and thus make corrective policy to preserve our sanity.  Just consider that we are continuing to pollute ourselves into extinction.  Or consider that there has been very little mentioned of the new directive that turns all government employees into untrusted co-workers as a means to stop the government secretes from becoming known.  Do we really think that the motivation for turning someone in will always be altruistic and not be for other selfish motives?  Here is a tip, racism is not dead, selfishness has become the dominate personality of a large swath of US citizens and greed is simply one expression of selfishness.  Oh yeah, we’re the government so why can I not know?

The trust your government issue has been discussed mostly by noting that one’s representative of their own ideology will not be in power at all times.  It is the idea that you can not trust your source of protection if it is not of you. This is quite the conundrum for all the ideological identities to resolve such that all can trust their source of protection, in this instance: government.  That source being the same for all ideological parties which have been taught to trust this source.

For me the real issue and concern is found in the morally conscious person argument.  It is the argument that suggest you have nothing to fear if you are doing nothing wrong.

Morals do not exist outside of the human experience.  Thus, a “moral” (if this is proper usage) is entirely determined at any given moment by the thought of at least one individual.  Doesn’t mean another individual will agree to abide by such but then does it matter?  I think the tendency would be to say that it does matter whether another individual does agree to abide such that ultimately society agrees to abide and thus defines the boundaries by which any individual can determine if they are morally conscious.  But what if it doesn’t matter?

What if what is considered morally correct no longer needs a societal consensus?  What if actions based on morals that are not consensus based are used to support policy upon or justify the use of an advantage of position? What if the advantage is a type which allows the push toward a consensus where there was none historically?  Frankly, I don’t believe it’s a what if.  Based on my readings of national court rulings, unitary executive theory, the authorization to use force which is used to claim a state of war which thus is reasoned to mean the president can do what ever…we are not in a what if.

And, within this frame work of moral flux all that you have communicated is stored electronically by the one you are to trust with your protection.

How are you no longer in jeopardy of self incrimination?  How can you be sure that in the future your past socially accepted moral parameters which all your activity is based upon will remain until you die?

Have you not recognized the moral changes related to the slogans “war on terror” and “free market”?

This is the moral reflected in the Fifth Constitutional amendment.  We have all heard, are still arguing the issue mostly based on the Fourth amendment.  But functionally as it relates to how life evolves it is the Fifth amendment that should be of most concern.  The language of the fourth is clear. The language of the fifth is clear.  But it is the moral flux that is creating the lack of clarity.  The moral flux effects the implementation of the fifth amendment more profoundly than it does the fourth.  Because of the lack of clarity which is the result of moral flux the real question becomes: How does the government fulfill the defined obligation of the Fifth amendment while operating in the manor such as that known as the NSA scandal?

There is the issue of defining privacy which has bearing on the means by which the government is implementing the Constitutional boundaries. Have we defined it? Had we defined it but now it is being redefined? Is this not an example of morals in flux? Is the concept of privacy a mores?

[mawr-eyz, -eez, mohr-]

plural noun Sociology .

folkways of central importance accepted without question and embodying the fundamental moral views of a group.

I found this paper from 1990: The Ethic of Privacy Protection by James H. Moor rather good as an introduction to answering the question of what is privacy.

Professor Moor offers up the concept of privacy being defined as situational.

By my definition, an individual or group has privacy in a situation if and only if in that situation the individual or group or information related to the individual or group is protected from intrusion, observation, and surveillance by others.  The vague word situation was deliberately chosen with the intent that it would range over the kinds of states of affairs to which we normally attribute privacy.

The paradigm example of a private situation is a situation in which one is protected from the prying eyes of others.  Private situations are islands of epistemological sanctuary.

There are two kinds of private situations-naturally private and normatively private.  Naturally private situations are situations in which people, because of the circumstances of the situation, are naturally protected from intrusion or information-gathering by others.

In normatively private situations the protection may be natural but is essentially legal or moral.  In normatively private situations, some people (the outsiders) are morally or legally forbidden from intruding or gathering information about others (the insiders) who are allowed in the situation.

So that is the structural aspect to privacy.  Yet, privacy only exists if it is experienced.  This thus requires defining boundaries within life’s experiences to actually know that one has experienced privacy.  Is privacy experienced if no one is present to the moment?  This makes privacy in essence a property of life.  If true, then it is an inalienable right.

The issue of self incrimination and property brings us to the fifth amendment functionally regarding the issue of privacy and our life experiences being collected and electronically stored for our protection:

…nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

If you can not be compelled to bear witness against yourself, then what use is all this “private” data and thus your electronically reincarnated self to a criminal case?  Your communications are your voice and if presented in a prosecution proceedings are they then not you speaking witness against yourself?  If the electronically copied you is accepted as the living flesh you, would not a warrant be the minimal requirement if we do not want to address the broader issue of defining privacy?  That is, we are keeping the debate regarding the electronic collection of all our speech (voice, written or otherwise) purely on a mechanical level of legal discussion and not a moral level.  The simplistic question being: What mechanism exists within our legal structure such that the protector can use this collection of speech in a prosecution setting.  Warrant would be the answer.

So we have the FISA court.  But, the FISA court is only entering the machinery after the data is collected.  The data is stored.  Someone goes to the court and request a warrant to search the collected data.  Is this not another example of morals in flux?  Was I wrong when I understood warrants came first as a request to collect data?  That is not happening here.  The data, you, and I mean You as in having enough data to recreate your personality, electronically cloned you is now stored for future potential need.  If a warranted search based on a question happens to tag the cloned you from the past and that moment of You historically captured is presented as evidence, how is this different from you being forced to incriminate yourself on the stand?

Professor Moor concludes it thus:

These instrumental justifications of privacy are the overwhelming philosophical favorites and may be adequate to ground the moral notion of privacy.  However, I believe that for some people privacy may be valued intrinsically, that is, valued for its own sake.  Of course, to claim that privacy may have intrinsic value is compatible with claiming that privacy is also instrumentally valuable.  The possibility of intrinsic value is worth exploring. As a thought experiment, consider someone who has his entire life under surveillance by others.  These others do not interfere with his life and he doesn’t know that the surveillance is taking place.  In effect, all private situations for this person are invaded, but his life is no different with regard to making decisions and having diverse relationships than it would have been without the surveillance.  The only thing different about his life under surveillance is that he has no privacy.  This person seems morally wronged by the invasion of his privacy though no special harm comes to him other than the invasion of his privacy.  This thought experiment suggests that privacy has an intrinsic justification as well as an instrumental one.  If this is the case, then, philosophically speaking, privacy is that much more secure.

Is professor Moor correct that the individual is “morally wronged” during a time of the acceptance of moral flux? This is 1990 and the old moral is that at the moment of surveillance, you are wronged.  But, the new moral is that there is no moral harm, thus no harm of any kind at the moment of surveillance because the protector has not used the legal machinery of “warrant” on that data.  It’s the “I got it but I did not peak”.  It’s the “I tried it but I did not inhale”. The problem with this new moral is that you and I do not know at the moment of surveillance that the data will not be used in the future.

With the old moral, if there was surveillance, there was a reasonable assumption that the data would be used by the government in a case against you.  Miranda Rights?  With the new moral, there is no knowing.

How can you be certain that your right to not self incriminate is fulfilled?  You can’t know because you can not know the moral definition of your activity as represented with your speech (written, spoken or otherwise) with certainty going forward.  That’s the nature human activity over eternity.  Morality changes.  We would hope morals change such that society advances.  But it appears morals today are changing such that advances in moral clarity, at least what were termed advances as in the Enlightenment are being reversed.  For a few examples in a word or phrase: torture, safety net, health care, the purpose of business, racism, disenfranchisement, voter rights, tort, state rights, liability, affirmative action.  Think of these as you understood them and then think of them as you are hearing the arguments regarding them.

The other aspect of the Fifth amendment is property.  If I and professor Moor are correct and privacy is a property of living humans, then the taking of my privacy via surveillance by the government is a violation of the inalienable right.  The other aspect of  “property” within the Fifth amendment is the use of that property.  That the government is then going to use the taking of my privacy for it’s purpose am I entitled to compensation?

This is not freedom as was morally defined historically.  In the past, morally freedom and the resultant policies were designed to take into consideration changing morals.  In that was our protection.  Within this framework we could trust our protector.  Currently what the discussion regarding the NSA represents is the moral of freedom in flux.  This moral flux is tantamount to reversing the policy of innocent until proven guilty.  We know that you can never prove yourself innocent.  It only takes the denial of your proof of innocence to have failed in your proof.  All one has to say is “I don’t believe you”.  It is the Salem witch trials if you have to prove your innocence.  Thus the moral was to prove one guilty beyond reasonable doubt and it was to be performed by the state, a supposed neutral entity in that the state is the construct of all of us.  But the state has just reordered the machinery of obtaining evidence.  The state has moved morals such that it defines morals without consensus.

We are not protected by the general gathering of our communications as it creates an electronic clone that acted in one state of moral clarity but can be potentially judged in another state of moral clarity.  The activity also takes our property.   If I am correct, and this is self incrimination which can not be forced (but for the process of moral flux) then what is gained by the NSA program?  The answer should be nothing, so stop doing it.  But it is being done and it is being justified as morally proper.

That’s it in a nutshell for me.