According to Seventh Circuit federal appellate Judge Richard Posner, it is.
He writes that privacy in the 21st century, at least in the specific context of public spaces and constantly recording surveillance cameras, is essentially an archaic and indeed dangerous notion. He even broadens this concept by agreeing with former New York City Mayor Michael Bloomberg that interpretations of the Constitution of the United States “will have to change.”
I could not disagree more with either this conclusion or the flawed reasoning and ethics he has applied to arrive at it. There has never been a more critical, if more trying, time to adhere to the promises of liberty guaranteed by the Constitution than today. The modern environment is, in many ways, precisely why the many restrictions levied on the federal government exist in the first place. The following provides some rebuttals for Judge Posner’s (hopefully innocently) misguided perspective.
All of which is to say that [Bloomberg] wants concerns with privacy to take second place to concerns with security. I strongly agree, though I’m not sure that the Constitution will have to be reinterpreted in order to enable the shift of emphasis that he (and I) favor (emphasis added).
The judge wishes for national security concerns, no doubt nebulously defined by the government itself to encompass all manner of abstract ideas and subsequently all people, to supersede individual rights (namely, those of privacy). This flies in the face of the very purpose underlying the function of the federal government, and ultimately presents a conflict of interest for the judge himself (and others like him). The Preamble to the Constitution clearly states that one of the purposes underpinning the federal government’s organization and function is to “secure the Blessings of Liberty to ourselves and our Posterity” (emphasis added). Posner (or any federal official) cannot ethically benefit from the authority granted him via the Constitution and ignore the central premise for its (and his) existence too. This is an ethical conflict that judges, above all else, are supposed to rise above.
Neither the word “privacy” nor even the concept appears anywhere in the Constitution (emphasis added).
This next sentiment is simply incorrect, and cherry picks the Constitution to a point of hypocrisy and, in its extreme, injustice. The concept of privacy (and justice) lay at the very heart of the Fourth Amendment’s searches and seizures clause:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (emphasis added).
There exists no reasonable way to implement surveillance cameras in a city under a probable cause warrant supported by a sworn oath, and that clearly articulates what/who is to be searched and seized pursuant to that probable cause. And while the word “privacy” may not be explicitly mentioned in this amendment or the rest of the Constitution, neither are the words “national” or “security.” In any event, the judge’s point is an irrelevant technicality at best. A reason, as privacy is just one of many, is not required to guarantee protection for the people of an individual right, or to mandate the government’s adherence to its own ratified ruleset. It is precisely the absence of a requirement to justify one’s rights that makes them rights in the first place – they are rightfully ours regardless of someone else’s recognition or agreement. Further, the Ninth Amendment recognizes the people’s individual (i.e., natural) rights, and the government’s responsibility to respect and protect them, without necessarily enumerating them within the greater charter: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (emphasis added).
The Constitution’s Tenth Amendment clearly states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (emphasis added). So in the interest of fairness and equitability, the following are a list of words and concepts that do not explicitly appear in the Constitution as being delegated powers to or prerogatives of the federal government: executive orders, foreign aid, deficits, law enforcement/police, central banking, fiat currency, income tax, marriage regulation, gun control, and czars (and so much more). This “transcript” approach to interpreting the “supreme Law of the Land” has never stopped the federal government from overreach, creation of various authorities altogether, and generally violating its sovereign charter, yet all of the sudden this strict interpretation is to serve as an impediment to protecting the very civil liberties that the state exists for in the first place? The Constitution is written (and more importantly, ratified) in exactly opposite fashion: the interpretation of the people’s rights is broad and liberal; the interpretation of the federal government’s authority is narrow, explicit, and strictly enumerated. There exists an amendment process to grant further powers to the federal government; there is no such mechanism to recognize individual rights because they are already broadly assumed in the face of extremely limited government authority. Another word not explicitly mentioned in the Constitution is “freedom.” When Judge Posner suggests that privacy should play second fiddle to national security, he is essentially saying that freedom should do the same.
There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to a society (emphasis added).
This position is entirely fallacious in nature. There is no such practicable concept as anything being “valuable to a society.” “Society” cannot “value” anything because society is not a thing unto itself, but rather a collection of things (individuals in this case). Thusly, only individuals can value something, and will inherently do so differently across wide swaths of the populace in accordance with praxeology (this post in response to Posner’s valuation should serve as ample example for this). There is no single issue known to man which “society” universally “values” similarly, let alone identically. The trouble with this sentiment is that in the end a single individual must always make declarative valuation for the society in question, thereby undercutting the judge’s very premise from the outset. Who gets to make that valuation for society, and how can s/he do so without violating some people’s rights? It is precisely because the Founding generation generally understood the nature of praxeology, valuation, and individual rights that they did not create a “one size fits all” state, but rather a federal republic – the definitional nature of which foundationally allows for diversity of values, ideas, and individual freedom.
…‘Privacy’ is really just a euphemism for concealment, for hiding specific things about ourselves from others. … We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares – highlighting the good, hiding the bad (emphasis added).
Again, there is no relevance whatever to this debatable point, within the context of government authority versus individual rights. For sake of the argument, let us say the judge’s perspective on privacy is generally correct. The logical and ethical follow up question is, “so what?” Posner’s point does nothing whatever to diminish the restrictions on the federal government’s infringing authority on such rights and, indeed, seems to suggest that the real culprit here is not terrorism but privacy itself, the real end not public safety but an indictment and diminishment of an individual’s ability to control their own image.
Privacy-protecting laws are paternalistic; they are based on a skepticism regarding whether people can make sensible evaluations of… private facts that enter the public domain (emphasis added).
This position is both somewhat true and a red herring. It is true in the sense that many people (including the authors and ratifiers of the Constitution) are skeptical regarding whether the people in government can make sensible evaluations of private facts. But it is also misleading and distracting to the extent that it is irrelevant. The bottom line concern for privacy is one of principle: it is no one’s business – and particularly not the state’s – what we do in/with our daily lives. It is also significantly a concern of incrementatlism, a point I will revisit shortly.
…A good deal of privacy just facilitates the personal counterpart of the false advertising of goods and services, and by doing so, reduces the well-being of society as a whole (emphasis added).
This is a point that is, from my perspective, flat-out incorrect. Whether one agrees with me or the judge will necessarily have to be determined by the individual reader for themselves. I posit that “society” would be far better off if we all erred on the side of minding our own business, rather than forcing everyone to know all intimate details of each other’s lives, as the judge’s broader sentiment suggests. It is the judge’s approach that leads to unethical, if ultimately lawful, discrimination of peoples based on personal facts that are no one else’s rightful business to know, such as sexual orientation, political leanings, family/personal values, religion, etc. (the list is potentially quite long). In any event, whether one agrees with the judge or me, there can be no denying that his position does nothing to diminish the rights of the people guaranteed by the Fourth and Ninth Amendments in this context.
…I don’t think that [privacy] laws confer social benefits comparable to those of methods of surveillance that are effective against criminal and especially terrorist assaults (emphasis added).
The judge’s point here, while an opinion vice a statement of fact, is high debatable at best. Additionally, effectiveness is not the sole measure of a law’s propriety – indeed, it is not even the most important measure. Ethics supersede effectiveness; the best laws, of course, are both ethical and effective, but efficacy cannot overrule ethics and simultaneously maintain a just adherence to the Constitution and the sovereignty of the people and their individual rights. For example, laws banning murder are not effective at all; murders continue to take place and any individual willing to break this arguably highest order of law will intuitively violate the many supplemental ones meant to limit his/her ability to do so along the way. Yet the illegality of murder is clearly ethical, and so there is no reasonable argument to be had as to its propriety. Though consequentialism is en vogue, this philosophy is an unethical and unconstitutional approach to governance in a “society” that is supposed to be of, for and by the people. The ends simply cannot justify the means if ethics, and consequent credibility of authority, are of any concern whatsoever. Might makes right is a unique tool of authoritarianism.
Additionally, there is plenty of cause to question the notion that technology or policies employed by the government is effective at all in this context. The judge conjecturally asserts that “[Street cameras in Boston] may well have prevented further attacks planned by the bombers, including whatever destruction they may have attempted to cause in New York City.” This is both unprovable and, given facts we do actually know, unlikely. England is, by the judge’s own acknowledgment, the most surveilled country in the world (there is no written Constitution there, incidentally and perhaps not coincidentally), and yet this police state did not prevent the suicide bombings in London or the infamous cleaver attacks (or ~1.9 million other violent crimes per year that do not neatly fall under a “terrorism” moniker).
A general concept of prevention is the greatest myth the state has ever created in pursuit of ever-expanding, vast authorities. What does the federal government successfully prevent, exactly? Terrorism? Drug use? Diminishing education results? Poverty? Crime? Wars? Recessions? The bigger the government gets, the more authority it wields, the worse these problems tend to grow.
Our government is not totalitarian (emphasis added).
This declaration, truly, is so highly debatable as to be naively absurd in its premise. There is no argument here that the United States is and remains (at least for now) one of the greatest nations on Earth, both from a prosperity and freedom standpoint, but to assert that it is not chock-full of power-drunk, oligarchical elitists who daily strive for omnipotence is a complete farce. To dispute a standard of totalitarianism in comparison to other nations is to exercise the unprincipled concept of moral relativism. If not totalitarian to at least some degree, how then do we characterize the unlawful killing of American citizens without Due Process (including three innocent non-targets), suspensions of the writ of habeas corpus, regulation of what we can say when, regulation of conscience, regulation of whom we can marry and when/why, de facto confiscation of private property, victimization by police rationalized because the victims do not know their place, and so on.
At the very least, there is no credible reason to believe that acquiescence to further surrender individual rights in the face of this incrementalism will not lead to totalitarianism of Orwellian ilk. We must reject providing the state with the tools needed to become totalitarian if we expect it to behave – mere promises not to infringe are unlikely to suffice.
I am not troubled by [the more than 10,000 public and private surveillance cameras in Chicago].
This is perhaps the hallmark of the oligarchy – employing a personal degree of valuation to rationalize public policy. Of course this encroachment does not bother the judge, as he is “in the club.” There is no fear of authoritarianism on the part of the ruling class by members of the ruling class. They are, after all, the ruling class for a reason: to rule over the rest of “society.” This is essential how all inequitable policies come to fruition in a society, because those espousing them never foresee themselves as being subject to the policies in question (particularly when applied in unintended ways), and therefore hold no empathetic quarrel with them.
Moreover, the [civil libertarian] criticism ignores deterrence (emphasis added).
In point of fact, this statement is false (at least insofar as this critique is concerned). As previously discussed, the prevention (deterrence) factor is highly questionable at best. But for sake of the argument, and as Murray Rothbard has pointed out, deterrence is a terribly faulty criterion for framing public policy to begin with:
Similarly, a classic critique of the deterrence principle is that, if deterrence were our sole criterion, it would be perfectly proper for the police or courts to execute publicly for a crime someone whom they know to be innocent, but whom they had convinced the public was guilty. The knowing execution of an innocent man — provided, of course, that the knowledge can be kept secret — would exert a deterrence effect just as fully as the execution of the guilty. And yet, of course, such a policy, too, goes violently against almost everyone’s standards of justice.
The central tenet of this criticism of Judge Posner’s position is the concept of authoritarian incerementalism. While many may find Posner’s argument sound theoretically, including myself to a point, the theory has never historically matched the reality on the ground and that is where I found my rejection of it. The state has no rights, including a right to exist, unto itself as it is fundamentally a willing extension of free individuals. The fact that the state exists in the first place is testament to the fallibility of humans – if we were perfect, we would of course need no governance. But we often fail to acknowledge that the state is at least thusly proportionally imperfect, and I would argue more so due to its inherent reliance upon violence of force to effectively implement any and all of its policies. A single individual cannot affect vast scopes of human misery, but the state can (in many cases at the behest of a single individual), and here lies the incessant need to restrict the government’s authority even in the face of fear-mongering and promises of good behavior. Not many reasonable people worry about cameras on street corners, truthfully, it is the worry of what inevitably comes next that necessitates us to take a stand now before it is too late.
Who watches the Watchmen? In his opinion, the judge acknowledges this human fallibility of the state by admitting that “arrests are often based on mistakes by witnesses or police officers, or are for trivial infractions” (emphasis added). Yet, he makes no accounting for the inherent conflict presented by advocating to increase state authority by which these same fallible human beings encroach in our daily lives. How can a government be credibly accountable to the people, as our Declaration and Constitution insist, while it wields such awesome authority over the people (and seeks to grow it further)?
Article III of the Constitution states that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour [sic].” I hardly count this interpretation, in direct violation of individual rights and rationalized by completely corrupting the very charter that underpins a judge’s authority, as good behavior. Holding a contrary opinion is one thing, certainly, but brazenly ignoring one’s oath of office and constitutional sovereignty is quite another, and is grounds for dismissal from such authority. Diminishing our individual rights is precisely what the terrorists’ ultimate goals are, our respect for and recognition of equitable natural rights being the reason they despise us fundamentally. Succumbing to this nonsense in the face of fear is tantamount to declaring victory for Islamic jihadists, who wish to transform the entire Earth into a totalitarian state made in their image. Our public officials should not aid and abet this effort, if under a superficially different rationale, from their platforms.
Of all tyrannies a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.