The tension between privacy and freedom

The public fury over the National Security Administration’s bulk collection of the phone data of U.S. citizens has merged the concepts of freedom and privacy.

The Decatur Daily story of an Egyptian who found asylum in the United States — and who recently was in Decatur for a table tennis tournament — is a reminder that privacy and freedom, while related, are not identical.

Sameh Awadallah loves his new home. What America has that he fears Egypt has lost, he said, is freedom.

“This is better than Egypt,” he said. “There is more freedom here.”

The loss of freedom he witnessed in Egypt is not abstract. Christians, he said, are routinely victimized by the Muslim Brotherhood and other radical groups. “Women — especially Christian women — cannot go out,” Awadallah said. “They get taken and you never see them ever again.”

America’s Founding Fathers guaranteed many freedoms through the Bill of Rights. Privacy was not one of them, at least explicitly. The U.S. Supreme Court extended the rights spelled out in the Constitution to include privacy. In Alabama, that extension has not been well-received, as it was the court’s justification for ruling that women have a right to abortions until the fetus is viable.

The fear that technology — especially the government’s use of technology — would erode at privacy is not new. In 1928, Justice Louis Brandeis dissented from an early constitutional review of whether federal agents violated a defendant’s Due Process rights by tapping a telephone line.

“Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet,” Brandeis wrote.

Brandeis and many judges since have explored the most obvious relationship between privacy and freedom. Governmental invasions of privacy typically come to light when the information obtained is used in a prosecution. Privacy and freedom are intertwined, because the loss of privacy can lead to a loss of freedom.

Individual freedom is not only vulnerable to government intrusion, however. Fear limits freedom. One source of fear is terrorism.

Awadallah’s discussion of the loss of freedom in Egypt is a reminder that the NSA’s intrusions on privacy are designed, in part, to protect the freedoms that Egypt has lost.

The Egyptian public, like the American public, includes both law-abiding citizens and terrorists. The loss of freedom that Awadallah describes is the result not of foreign action or even, for the most part, direct governmental action. It is the result of internal lawlessness. Members of the Muslim Brotherhood, he said, are preying on other members of the Egyptian public.

The anger many feel about NSA data collection is that it is aimed at the U.S. public. But as in Egypt, the U.S. public is a tumultuous mix of good guys and bad. The public includes both terrorists and their victims.

Charged with protecting America, NSA does not have the luxury of pretending the U.S. public is either homogeneous or benign. The “we” that resents NSA intrusions includes both citizens who seek to inflict terror and citizens who will be their victims.

There is a tension between freedom and privacy. Unabridged freedom arguably includes absolute privacy. Invasions of privacy, if abused, certainly can result in violations of the sort of freedoms that Awadallah finds lacking in Egypt.

Often lost in the debate over the NSA’s intrusions into our privacy is the fact that it operates under secrecy we authorized. In a representative democracy, people express their will through those they elect. Americans — through Congress — created the Foreign Intelligence Surveillance Court in 1978. The court, designed to operate outside public view, has remained the primary watchdog of increasingly expansive federal counter-terrorism powers.

None of this has been an accident. Americans feared terrorism in 1978, and that fear escalated to panic after the attacks of Sept. 11, 2001.

The USA Patriot Act, which dramatically increased NSA’s authority to invade our privacy, was not the product of a rogue Congress. Our elected representatives recognized our fear and reacted to it through legislation. They recognized we were willing to sacrifice privacy for safety. Stated differently, they understood we were willing to lose some of our privacy in the hopes we would gain freedom from terrorist acts.

One problem with laws that create institutions designed to operate in secret, of course, is that the institutions are impervious to changes in public sentiment. The fear that gripped America in September 2001 has faded, but the secrecy and the intrusions upon privacy we authorized in 2001 remain as strong as ever.

What is clear, though, is that the American public is not insular. If we demand that counter-terrorism procedures be transparent to American citizens, we are likewise demanding that the terrorists we fear have a clear view of the institutions designed to protect us. If we demand privacy, we likewise are demanding privacy for the enemies within our border.

In a public that includes both those who love America and those who seek to destroy it, a limited loss of privacy may be a necessary step in protecting freedom. As Awadallah discovered in Egypt, governments are not the only threat to freedom.

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Filed under Civil liberties, NSA, Surveillance

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