Tuesday, January 14, 2014

The Great Privacy Debate Begins

If there is anything about which I have been insistent in this blog, it is the call to place the debate over what's private into the public arena.  Until now, one of the worst aspects of the political performance of President Obama, both as candidate and as President, has been his lack of attention or initiative in this area, and I have criticized him frequently for it.  I had reason to look for more from him, as constitutional scholar was one of his career specializations, prior to his electoral one.

I do have to thank Edward Snowden and his outing of the NSA's methods of high-tech espionage for finally launching this debate and bringing it into the public eye.  I find it hard to consider Snowden a hero, this hired hand who took it upon himself to decide to break his oaths of secrecy; he doesn't quite qualify as a "whistleblower", in the legal sense which protects such activity, because the activities he revealed have been thoroughly vetted, albeit against extremely lax legal limitations.  On the other hand, he's definitely been a whistleblower in the senses of a) blowing the whistle to signal the start of the game; and b) using the fricative (not "fricking") device to call attention to himself.  And, again, his "revelations"--none of which were truly new and surprising, to those who've been paying attention--have performed a public service in focusing our attention on the subject.

That being said, making the issue all about the NSA is a bit misplaced, I think.  There was clearly an abuse of the quietly-granted prerogatives the organization got from Congress and the Courts, and the simple public disclosure of their methods probably invalidates those recent ones (though they would be able to find new ones).  Then there is the reform that is now going to be forthcoming.  In that sense, debate is tardy:  the fix is already in.  President Obama commissioned a group of four experts on the subject, and they produced a report with 46 unanimously-agreed measures. They understood very clearly that there are times when information must be obtained for reasons of security, but that expectations under normal circumstances should be that the government not snoop around in people's business without reason, exactly the principle I have been proposing for years. I expect Obama will be announcing very soon that he will be putting virtually all of the recommendations into place--they are basically within the realm of Executive Branch discretion.

I would say the most important provision will be the naming of a public advocate to argue, at the appropriate times, against warrants for privacy invasions at the FISA court that has been until now a rubber stamp, if not bypassed entirely. This advocate will need to be a strong individual with a proven regard for the protection of the public's privacy interest, comparable to the way Elizabeth Warren or Richard Cordray were for the newly-created role as consumer advocate in financial dealings, and that quality will need to be sustained over time.  This last will be the hard part, as the historical tendency is for such roles to be co-opted by the power centers.  One other notable recommendation is some attempt to restrict the snooping on data flows outside the US, whether or not they involve Americans; this is WORSP-behavior at its worst.

My hope is that this will be the beginning, not the end, of a vigorous public discussion of what activities, by which people, should be left out of the public eye (and the private eye), and when something that someone does is legitimate grist for the public mill.  The media today is a gluttonous shark, which smells sweet new blood, munches furiously, spitting out the bones, then darts off for new prey.  With Warhol's prediction coming partly to fruition, of brief celebrity for many (not all, yet), this is leaving a lot of casualties and not providing much cultural nutrition.

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