The ACLU, Privacy and Obama


It was a statement that remains powerful for its clear and striking defiance: wanting to be left alone.  It was not merely a position taken by Greta Garbo who fobbed off the fans and detractors with equal disdain simply wanting to be let alone; it was also a statement of legal supposition that became law.

The authors of what remains one of the common law’s greatest expositions of a principle said it best: separateness is sacred, and the law must keep up with the strides, lengthy and indifferent to consequences as they tend to be, of technology.

In 1890, Louis D. Brandeis and Samuel D. Warren noted in the Harvard Law Review that incursions into people’s lives – smutty rags, yellow papers, and the telegraph – had all done their bit to encroach on privacy.  “The press is overstepping in every direction the obvious bounds of propriety and decency.  Gossip is no longer the resource of the idle and the vicious, but has become a trade”.  Through tight reasoning and analogy, the able jurists decided that grounds for a civil wrong in breaching privacy might be found.  Since then, it has become part of American law and that of the European Union.

This was before the age of total surveillance and technological mastery, before the metadata freaks of the U.S. surveillance state and such programs as Prism, before the privacy loathing Mark Zuckerberg decided that social networks should spell an end to that childish attempt of humans to create a “sphere” of separateness from their fellow beings.  Even in 1890, it was becoming apparent that the tentacles of the state and overly interested private citizens might decide that privacy was something that either did not exist or should best be left aside.

With such entities as the EU furious at the prospects that citizens have been snooped upon by the minions of the U.S. empire, it is time to unleash the privacy attack dogs.  Edward Snowden’s revelations were simply the first firing shot in what is becoming a broader battle against the surveillance supremos.

We can’t, however, expect European officials to be entirely at one in confronting their American colleagues over examining the contents of the linen.  After all, as has been pointed out, “Europe wants the information that American intelligence provides” (Washington Post, Jun 11).  The observation from Hans-Peter Friedrich, Germany’s interior minister, is telling. “We get very good and reliable information from our American friends and partners that has played an important role in the past in preventing attacks in Germany.”

In the United States, the American Civil Liberties Union has decided to take the juridical plunge and haul the government before the judges for what it sees as an undue interference in liberties.  It has filed a suit in the U.S. District Court for the Southern District of New York against James Clapper, General Keith Alexander, and various other officials of the Obama administration in what it claims is an operation that “vacuums up information about every phone call placed within, from, or to the United States.”

According to the ACLU’s own remit, stated on its site, “We are dedicated to protecting and expanding the First Amendment freedoms of expression, association, and inquiry; expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology.”

The suit itself – ACLU v Clapper – “challenges the government’s dragnet acquisition of Plaintiff’s telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861.”  The ACLU argues that the accumulation of “metadata” amounts to “snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long, and from where.”  To that end, the ACLU has attempted to seek a declaration that such “mass call tracking” violates the first and fourth amendments of the Constitution, and a host of other laws under the U.S.C..

The important feature of the fourth amendment for those not familiar with its scope (that it would seem, include many in the Obama administration) lies in its protection of a person’s security “in their persons, houses, papers, and effects, against unreasonable searches and seizures”.  Probable cause for such action is required, and under warrant. Prism, through its scope, effectively initiates such “unreasonable searches” and “seizures” without such cause.

Furthermore, the ACLU argues that such legal instruments as the Electronic Communications Privacy Act (ECPA), which should, in theory, protect chat logs and email, is in need of a severe spring clean.  One can only agree with these assertions after the Prism monster was let out of the bag, along with such nasties as the Cyber Intelligence Sharing and Protection Act (CISPA).  Uncle Sam is not merely watching you; he is reading your logs and savouring them with hope, relying on corporate friends to do his bidding.

Previous efforts by the ACLU to challenge such surveillance programs have come to nought.  The reason has been simple though not entirely convincing – standing has been difficult to show, as has been proof of damage. On this occasion, the organisation is a customer of Verizon, and for that reason, claims it can bring a lawsuit in its own name.  The necessary “harm” will be easier to show.

Senator Rand Paul (R-Ky) has similarly promised to file a class action suit against the Obama administration at the Supreme Court level challenging the legality of the action.  His wish list is extensive, but he is hoping to net 10 million Americans in an effort to overturn the policy (New American, Jun 12).

The fatuous defence that began circulating from the Obama administration after the Snowden revelations was that metadata was distinctly different from massive surveillance.  This was less a case of snooping than collating, gathering and systematising. But we know that Vice President Joe Biden, when he was a Senator, criticised record-collecting programs of the Bush administration in 2006, suggesting that such systems were “very, very intrusive” (ACLU, Jun 6).  The movement against such intrusion must has begun.  May it develop steam, rambunctiousness and courage.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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