• The spying state
    November 01,2013
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    Jason Schmitt, a professor at Green Mountain College, was walking through the woods on his newly purchased property when he discovered about a dozen sizable, healthy marijuana plants. In an essay appearing in the online publication Slate, he described the dilemma that this discovery created for him.

    Given the pervasive presence of government surveillance — aided by Google, Verizon and other communications companies — Schmitt wondered whether it would be wise to Google up an inquiry about the marijuana laws in Vermont. If he did so, would he tip off authorities about the marijuana on his land?

    He ended up going to a library where he used a library computer to determine that he could find himself in serious trouble if police found the crop on his land. Then again, maybe the crop belonged to an elderly neighbor who needed it for legal, medicinal purposes. Would he be hurting his neighbor by destroying it?

    Later the neighbor, who had Alzheimer’s disease, wandered away, necessitating a police search. After police dogs found the neighbor, Schmitt performed what he acknowledged to be an expensive bonfire.

    Schmitt’s dilemma underscores the new fears that have grown up around revelations of the massive surveillance programs undertaken by the National Security Agency, at home and abroad. Even without specific knowledge of a specific instance of government snooping, the public has become increasingly aware of the capability of government and communications companies to track our every email or text message, even our movements.

    But now we have specific knowledge of a specific instance, and it is laughably egregious. The government was tapping the cellphone of German Chancellor Angela Merkel. There was much embarrassment on the part of the Obama administration and vagueness about whether President Obama did or did not know about the Merkel surveillance. (Which is worse, for him to have known or not to have known?) What is clear is that spying of that sort is a violation of trust and that Merkel has a right to feel betrayed — even if foreign leaders all know that all sorts of spying is going on all the time.

    So if spying on a friendly foreign leader is obviously foolish and wrong, why is it all right for the government to spy on American citizens? One of the consequences of the revelations about Merkel has been the damage of trust between the European nations and the United States. Domestic spying creates a similar lack of trust between the U.S. government and the American people. Jason Schmitt’s cannabis conundrum illustrates the way the surveillance apparatus created by a fearful government has spread fear among the American people. And fear is an enemy of freedom.

    Sen. Patrick Leahy has chosen an appropriate time for unveiling his new bill curtailing the power of the NSA to operate without accountability or transparency or to spy without warrant on the American people. He has joined with a conservative Republican in the House, Rep. James Sensenbrenner, to introduce a bill with wide bipartisan support.

    It is noteworthy that protection of our privacy rights is a cause shared by liberals and conservatives. The supporters of Leahy’s bill include a spectrum of senators that stretches from Elizabeth Warren, Democrat of Massachusetts, to Mike Lee, Republican of Utah.

    It is worthwhile reminding ourselves that our privacy rights are grounded in the Fourth Amendment, which protects Americans from unlawful search and seizure of our persons or effects. Our effects include our communications. At the time of the Revolution, communications consisted of letters, which meant the Fourth Amendment barred authorities from raiding your house and searching through your papers without a warrant signed by a judge affirming that your papers were material in a criminal investigation.

    The modern equivalent is spying on your email communications. Leahy’s law would require authorities to show a legitimate reason they needed to collect your email or spy on your text messages. Bulk gathering of communications information would no longer be allowed. Other measures would introduce accountability to the process.

    People are not supposed to be required to justify their privacy. The Constitution requires that the government must justify its individual acts of spying. Leahy’s law would help recalibrate that balance.
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