Privacy should stay private


Tuesday, October 23
Sen. Chris Dodd, D-Conn., deserves America's praise for announcing his intention to block a full Senate vote on a White House-backed surveillance bill.

Dodd announced last week that he will use his senatorial "hold" power to prevent a vote on Foreign Intelligence Surveillance Act (FISA) legislation. He is doing so because he objects to a provision that would give retroactive immunity to telecommunications companies that cooperated with intelligence agencies to conduct warrantless surveillance of Americans.

President Bush and Director of National Intelligence Michael McConnell want to protect three large telecommunications companies -- Verizon, Qwest and AT&T -- from multiple lawsuits charging these companies with collecting customers' phone records and sharing them with the National Security Agency. Bush and McConnell maintain that allowing these lawsuits to go forward would weaken our national security.

There's that phrase again -- "national security." Americans are now supposed to accept all sorts of intrusions into their privacy in the name of protecting the nation from terrorism.

It is a lie. The Bush administration wants permanent and unchecked power to electronically eavesdrop on anyone it believes to be of interest.

John Dean, President Nixon's legal counsel, is a man who knows quite a bit about unchecked executive power. He has written a great deal about the subject in recent years. While Dean believes that it was right to make adjustments to FISA to reflect the advances in communications technology since the original law was written in 1978, he believes the Bush administration wants much more than it's letting on.

In requesting immunity for the phone companies, Dean wrote that the Bush White House "refused to disclose exactly what types of activities Congress would be retroactively immunizing."

In the case of the phone companies, Dean believes they have violated several federal criminal statutes regarding warrantless surveillance. At the same time, the Bush White House apparently instructed the phone companies to violate the law, and never gave a thought about criminal liability for those violations.

There are more than 40 pending lawsuits against telecommunications companies and there could be thousands more. Naturally, the companies want immunity. But the 1978 FISA law is crystal clear on this -- to monitor the communication of Americans overseas, probable cause for surveillance must exist and a court warrant must be granted.

President Bush and his administration believe that their war on terror trumps the Constitution and protection of our civil liberties. We believe otherwise. We believe this is a fundamental question about privacy and the right to be free of people snooping on us.

We've heard the argument time and time again that "I've got nothing to hide, so let the government spy on me if it makes us safer."

There are two fallacies to that argument. First, it assumes that only bad people have something to hide and that a person who seeks privacy must have something to hide. Secondly, all the surveillance that the government has done over the past six years has yielded little useful information.

Professor Daniel Solove of George Washington University Law School summed it up nicely when he wrote that the "I have nothing to hide" argument "myopically views privacy as a form of concealment or secrecy."

Solove, who is considered an expert in the area of privacy in the digital age, believes that today, the concept of privacy encompasses the proper and improper use of information about people in a society.

"Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live."

In short, before Congress decided to cave in to President Bush's demands to give him more power to invade our privacy, and absolve others from legal liability for invading our privacy, there needs to be a thoughtful discussion about what privacy is all about and why it is the most important right in a civilized society.


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