Security versus privacy

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The debate over “Security versus Privacy” may ultimately be resolved simply by more sophisticated computer programming.  For example, the NSA announced that contract IT System Administrators (like Edward Snowden) will no longer have unsupervised access to the entirety of system software or contents.  A “buddy system” (as with ICBM launch protocols) is being imposed.   

Unfortunately, the Sentinel “muddies the waters” by citing “Americans’ constitutional right to privacy” – a “right” not expressly mentioned or guaranteed in our Constitution.  Rather, our Supreme Court has found an implied “constitutional right to privacy” in the “penumbra” surrounding other rights.

NSA surveillance programs implicate the “constitutional right to privacy” presumably guaranteed by the “penumbra” of the Fourth Amendment – which expressly prohibits only “unreasonable searches and seizures” and requires a “warrant” based on probable cause.

However, because the Supreme Court has affirmed multiple exceptions to this implied “right of privacy” (see, e.g., the Sentinel’s June 7 editorial, “DNA ruling weakens Fourth Amendment”), there is no “absolute rule” barring warrantless searches and/or seizures.  Thus, contrary to Justice Scalia’s dissent in the DNA case, the Fourth Amendment is by no means “categorical and without exception”.

On the other hand, “wiretapping” – where law enforcement (or the NSA) intercepts the communications of identified persons who have a” legitimate expectation of privacy” – always requires a warrant.

But, one NSA program at issue captures only the phone numbers at both ends of all calls (by subpoenaing “business records” routinely maintained by telephone companies) – not the content of the conversation or the identity of the participants.  Moreover, there is no “legitimate expectation of privacy” with either the internet or cell-phones.

The computer programming challenge is to design a system in which any “unwarranted” attempts to access “personally identifiable information” sounds an alarm, but continues to fulfill the security purposes of the Patriot Act.



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