PRIVACY IN AMERICA

For
GOOD CAUSE OR LOST CAUSE

An MLA PAPER
by MYSTICALGOD
 Lawrence – Privacy MLA

Lawrence

Professor Dumbledor

magical english 101

14 March 2010

Loss of Your Privacy, for Good Cause or Lost Cause?

The right to privacy has not been not expanding, but it has been

shrinking with each passing year, in our country. The dominating

justification used to remove people's right to privacy has been to

prevent varying levels of crime. Terrorism has been one cause for the

most intense change to people's right to privacy. In an ongoing war

against terrorism, we have been confronted with having to weigh

whether the loss of privacy is for good cause or lost cause.

One might start to approach this subject matter as a way to

control what could get out of control. The U.S. Supreme court had

once said:

The warrant clause of the Fourth Amendment is not dead

language. . . . It is not an inconvenience to be somehow

‘weighed’ against the claims of police efficiency. It is,

or should be, an important working part of our ma-chinery

of government, operating as a matter of course to check the

‘well-intentioned but mistakenly over-zealous executive

officers’ who are a part of any system of law enforcement.

(Powell 481).
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This is more easily said than done, especially when those who

are empowered to regulate laws are the ones who are creating the laws

which need the most regulation. Take the executive order given by

President Bush, as an example.

On December 16, 2005, the New York Times published a front-page

story revealing the existence of a secret executive order issued by

President George W. Bush in the months following the September 11,

2001 terrorist attacks on the United States.(Risen & Lichtblau, A1)

According to the article, the executive order authorizes the National

Security Agency (the “NSA”) to conduct electronic surveillance on

U.S. citizens and permanent residents inside the United States

without first obtaining a warrant from the Foreign Intelligence

Surveillance Court as man-dated by the Foreign Intelligence

Surveillance Act of 1978 (“FISA”).

Yet, prior to this order, the realm of searches and seizures

were already in rough waters due to numerous cases involving problems

of pretext. Who is to truly know the real intentions of the officials

behind the search? This resulted in the application of The Fourth

Amendment's right to privacy being used as a remedy rather than a

preventative. Some believe that the problem is wherein the solution

lies, to place greater controls on the actions of policing officials

in order to prevent pretext and other abuses. As Citron stated in his

journal:

Since Whren v. United States, Fourth Amendment analysis has

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failed to appreciate the serious wrongfulness of pretextual

police behavior—especially searches and seizures. This is

not because a pretext test is impractical or

philosophically unsound. Rather, the problem lies in the

current focus of our Fourth Amendment analysis, which puts

undue emphasis on the individual’s “right to privacy” and

insufficient emphasis on responsible police behavior. The

state’s investigatory power is held in trust by the police

for the people. If we refocus our attention on the idea

that the police power must be deployed in a responsible

manner in keeping with that trust, we can see clearly what

is problematic about pretext. (Abstract)

But in response to Citron, Judge Robertson, U.S. District Court

for the District of Columbia, argues that pretext by officers may be

distasteful, but it isn't grounds for suppression:

Funny, isn’t it, that “pretext” is a dirty word, a

liability-conferring word, in an employment discrimination

case, or a fraud case, but that in Fourth Amendment

jurisprudence the word has been given a free pass? That,

to use Eric Citron’s phrase, the word even seems to open

up a “a liberated space for bad intentions”? (Robertson

374)

Understanding these opposing views of whether intentions for

taking away a person's right to privacy is justly motivated by good

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cause, or injustly motivated by bad intentions, can give us a better

idea of how to examine, or analyze, today's leading issues concerning

privacy, under a more impartial light. Three leading issues for us to

consider are: wire taps, credit history investigations, and body

scanners.

Wire Taps

Wire taps used to mainly consist of some type of inline device

that would allow listening to a person's phone conversation. Now,

with todays level of computer technology, a wiretap may involve

intercepting emails, digital media (such as video or photos), device

monitors (such as gps systems, baby monitors or othe wireless

devices, blue tooth systems, etc.), or faxes:

The NSA identified domestic targets based on leads that

were often derived from the seizure of Qaeda computers and

cell phones overseas. If, for example, a Qaeda cell phone

seized in Pakistan had dialed a phone number in the United

States, the NSA would target the U.S. phone number—which

would then lead agents to look at other numbers in the

United States and abroad called by the targeted phone.

Other parts of the program were far more sweeping. The NSA,

with the secret cooperation of U.S. telecommunications

companies, had begun collecting vast amounts of information

about the phone and e-mail records of American citizens.

Separately, the NSA was also able to access, for the first
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time, massive volumes of personal financial records—such

as credit-card transactions, wire transfers and bank

withdrawals —that were being reported to the Treasury

Department by financial institutions. These included

millions of "suspicious activity reports," or SARS,

according to two former Treasury officials who declined to

be identified talking about sensitive programs. (It was one

such report that tipped FBI agents to former New York

governor Eliot Spitzer's use of prostitutes.) These records

were fed into NSA supercomputers for the purpose of "data

mining"—looking for links or patterns that might (or might

not) suggest terrorist activity. (Isikoff 3)

Opposition to wire taps, and other types of surveillance by

government officials, is difficult to support and to present in

court. The reason for this is because such documents and discussions

are classified as secret. This is known as “the secrecy priveledge”.

It's hard to talk about, or reveal, a document that you are told you

are not allowed to talk about. Often the media has run into this

problem, and they have been penalized for doing so in the past.

One official, Thomas M. Tamm, chose to speak out about

surveillance methods he considered to be wrong, and he has been under

fire by officials for doing so:

In the spring of 2004, Tamm had just finished a yearlong

stint at a Justice Department unit handling wiretaps of

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suspected terrorists and spies—a unit so sensitive that

employees are required to put their hands through a

biometric scanner to check their fingerprints upon

entering. While there, Tamm stumbled upon the existence of

a highly classified National Security Agency program that

seemed to be eavesdropping on U.S. Citizens. The unit had

special rules that appeared to be hiding the NSA

activities from a panel of federal judges who are required

to approve such surveillance. When Tamm started asking

questions, his supervisors told him to drop the subject. He

says one volunteered that "the program" (as it was commonly

called within the office) was "probably illegal." (Isikoff

1)

Is there any support, other than the obvious, for wiretap

methods of surveillance? Among so much talk against it, while it

continues to thrive, one must realize that perhaps it doesn't

actually need support because it can sustain it's own existence and

intentions.

The most striking fact from both the FDR and Bush

Administration electronic surveillance programs is that the

courts and Congress were powerless to stop them. In

America, Congress is supposed to have primacy. As

Federalist No. 51 puts it, “In republican government, the

legislative authority necessarily predominates.”288 But in

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the context of electronic surveillance that predomination

had little concrete effect. So, too, with the courts.

Americans pride themselves on a Supreme Court that stands

up to presidents in the name of principle.289 But in both

World War II and the War on Terror, nothing happened in the

courts or Congress that had any practical impact on the

surveillance either.

Credit History Investigations

Anyone with a “legitamate business need” can investigate a

person's credit history. The information discovered by such an

investigation will disclose material that is protected by privacy

rights. This type of information, according to Privacy Rights

Clearinghouse, contains a data mine of information which includes a

person's Social Security number, date of birth, current and previous

addresses, telephone number (including unlisted numbers), credit

payment status, employment, even legal information. (Privacy Rights

Clearinghouse)

The majority of those performing credit history checks claim

that without such information, they would be taking significant risk

with the person of whom the report concerns. Employers are among this

majority. Amy B. Crane of Bankrate.com lists some arguable reasons

for the need for credit history investigations:

An employer's need to know about potential employees is

driven by a number of factors, according to the Privacy

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Rights Clearinghouse. These include:

• False or misleading information given by job

applicants, estimated by some sources at 30 to 40 percent

of all information given on resumes and job applications.

• Federal and state legal requirements for certain jobs,

including those that involve contact with children, the

elderly or disabled, as well as some government jobs.

• Fallout from corporate scandals, such as Enron and

WorldCom

• The Sept. 11 attacks

• Negligent hiring lawsuits, where a company is sued

because an employee caused harm to someone else.(Crane)

While Most employers currently hiring will seek this private

information, believing it is their right to know, many people oppose

this process, stating that it is invasive and detrimental to their

access to fair employment and lifestyle. Maryland Delegate, Kirill

Reznik stated:

We are in the great recession and this creates a vicious

cycle, People lose their jobs, that naturally precipitates

them getting behind on bills, their credit scores go down,

 Lawrence – Privacy MLA

they are trying to find a job to pay off the bills, and

employers won't hire them because of their credit score

(Associated Press)

Body Scanners

Following the Chistmas bomb attempt in 2009, aboard flight 253,

by Umar Farouk Abdulmutallab, Transportation officials (TSA)

announced that several more major U.S. Airports would be receiving

full-body imaging machines, otherwise known as body scanners. The

scanners can show objects hidden under clothing. It's believed that

such a device would make air transportation safer from terrorist

threat. TSA asserts that:

this technology can detect a wide range of threats to

transportation security in a matter of seconds to protect

passengers and crews. Imaging technology is an integral

part of TSA's effort to continually look for new

technologies that help ensure travel remains safe and

secure by staying ahead of evolving threats. (TSA)

Twenty-one airports currently use body scanners.

Because the scanners show the person as completely nude, these

devices have recently faced much opposition.

The ACLU argues:

 Lawrence – Privacy MLA

Widespread deployment of body scanners does not make sense

as a response to the Abdulmutallab attack. This technology

should not be used as part of a routine screening

procedure, but only when the facts and circumstances

suggest that it is the most effective method for a

particular individual. And such technology may be used in

place of an intrusive search, such as a strip search – when

there is reasonable suspicion sufficient to support such a

search. This technology involves a striking and direct

invasion of privacy. It produces strikingly graphic images

of passengers’ bodies, essentially taking a naked picture

of air passengers as they pass through security

checkpoints. It is a virtual strip search that reveals not

only our private body parts, but also intimate medical

details like colostomy bags. Many people who wear adult

diapers feel they will be humiliated. That degree of

examination amounts to a significant assault on the

essential dignity of passengers. Some people do not mind

being viewed naked but many do and they have a right to

have their integrity honored.

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CONCLUSION

Whether the concern is for safety, or employment, or security,

people have one objective in mind: the right to privacy. The

abundance of evidence is available wherever people look. People

also want safety and security. The remaining choices to be made

are where the line should be drawn to protect people's right to

privacy.
 Works Cited

Powell, Keith (Judge). 407 U.S. 297, 315–16 (1972), quoting from Coolidge v. New

Hampshire, 403 U.S. 443, 481 (1971)

Risen, James & Lichtblau, Eric. Bush Lets U.S. Spy on Callers Without Courts, New York

Times, Dec. 16, 2005

Citron, Eric F.. Tuesday, 20 March 2007 116 Yale Law Journal 1072 (2007)

Robertson, James. How Whren Protects Pretext, 116 Yale L.J. Pocket Part 374 (2007),

<http://yalelawjournal.org/2007/04/30/ robertson.html>

Michael Isikoff, JUSTICE The Fed Who Blew the Whistle, NEWSWEEK, Dec 13, 2008 (issue

Dec 22, 2008), <http://www.newsweek.com/id/174601/page/1>

Katyal, Neal and Caplan,Richard. The Surprisingly Stronger Case for the Legality the NSA

Surveillance Program: The FDR Precedent, GEORGETOWN LAW

Faculty Working Papers, Stanford Law Review, 2008

Privacy Rights Clearinghouse/UCAN. Fact Sheet 6: How Private Is My Credit Report?, Posted

November 1992 Revised May 2009, <http://www.privacyrights.org/fs/fs6-crdt.htm>

Crane, Amy. Why Employers Need to Know About You, 2010, <http://www.background-checks

systems.com/why_employers_want_to_know.htm>

Associated Press, Employers checking credit history, March 2, 2010, The Washington Times,

<http://www.washingtontimes.com/news/2010/mar/02/employers-checking-credit-history/>

Imaging Technology, Transportation Security Administration, 2010,

<http://www.tsa.gov/approach/tech/imaging_technology.shtm>

ACLU Backgrounder on Body Scanners and “Virtual Strip Searches”,January 8, 2010,

<http://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-
%E2%80%9Cvirtual-strip-searches%E2%80%9D>