Snowden’s Christmas Message on Privacy: Does NSA threaten 9th, 14th Amendments, ‘Inviolate Personality’?

(By Juan Cole)

He said that this disappearance of privacy is important because privacy “is what allows us to determine who we are and who we want to be.”

Edward Snowden’s Christmas address, carried by the British Channel 4, concentrated on the disappearance of privacy. He said that a child born today might “never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought.” People walk around with a tracking device in their pockets, he noted, and as we now know, the NSA is collecting the metadata of those phones, which includes location information. He said that this disappearance of privacy is important because privacy “is what allows us to determine who we are and who we want to be.”

AP has the video of Snowden’s Christmas message:

In focusing on privacy, Snowden is widening the issue merely from the 4th Amendment prohibition on unreasonable government searches of private papers and effects. This amendment was the basis for a recent Supreme Court ruling and a lower court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts construed following someone around 24/7 as a “search” because such intensive monitoring of a person’s movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones inevitably involves tracking individuals just as a GPS device would.

But there are other places in the constitution and in the history of court rulings that prescribe privacy for individuals from government intrusion. In fact, although “privacy” is not mentioned in the US constitution, the Supreme Court found in Connecticut v. Griswold that American citizens had a constitutional right to use birth control and that the state could not arbitrarily come into the bedroom and prohibit it. Some of the justices referred to the 9th Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is, the government can’t just wake up in the morning and decide to constrain people’s private behavior. Not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are protected in general as a free people from government intrusions.

Snowden is not a legal scholar but he has obviously thought deeply about privacy, and it seems to me he is warning that National Security Administration surveillance of millions of innocent Americans is violating their right to privacy and therefore violating the ninth amendment.

Other justices in Griswold referenced the due process clause of the 14th amendment, which says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Justice William O. Douglas instanced all of these considerations, saying that

“the Bill of Right’s specific guarantees have “penumbras,” created by “emanations from these guarantees that help give them life and opinion.” In other words, the “spirit” of the First Amendment (free speech), Third Amendment (prohibition on the forced quartering of troops), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general “right to privacy” that cannot be unduly infringed.”

Although Douglas’s finding of a “penumbra” of privacy in the constitution has fallen out of favor with jurists, this might be a good time to revisit it.

By monitoring who we call, when we call, and where we are when we call, the NSA is abridging the privileges and immunities of a free citizenry. They are depriving us of liberty without due process of law, since they haven’t obtained a warrant from a judge on grounds of specific evidence of wrong-doing. Likewise, the NSA is using the British intelligence organization GCHQ to scoop up citizens’ actual email texts and telephone calls that bounce through fiber optic cables across the Atlantic, which even more than metadata constitutes a form of warrantless wiretapping.

Snowden’s focus on privacy thus potentially widens the discussion from narrow procedural issues like warrantless search of electronic papers and effects to a much broader concern with the right of citizens to personal privacy from their government. This privacy is part of what Americans have typically meant by “liberty” and by being “free people.” That so many Americans, including members of the Washington punditry, are so willing blithely to abandon these rights and that liberty is absolutely appalling. You have a sense of how they would have behaved in the 1930s if they had been Germans after Hitler’s coup.

Snowden’s account of privacy is reminiscent of the work of Edward J. Bloustein as described in the Stanford Encyclopedia of Philosophy:

“Edward J. Bloustein (1964) argues that there is a common thread in the diverse legal cases protecting privacy. According to Bloustein, Warren and Brandeis failed to give a positive description of privacy, however they were correct that there was a single value connecting the privacy interests, a value they called “inviolate personality.” On Bloustein’s view it is possible to give a general theory of individual privacy that reconciles its divergent strands, and “inviolate personality” is the social value protected by privacy. It defines one’s essence as a human being and it includes individual dignity and integrity, personal autonomy and independence. Respect for these values is what grounds and unifies the concept of privacy. Discussing each of Prosser’s four types of privacy rights in turn, Bloustein defends the view that each of these privacy rights is important because it protects against intrusions demeaning to personality and against affronts to human dignity.”

The NSA mass surveillance is above all an “affront to human dignity.”

Having provoked a national and international debate over government surveillance, Edward Snowden is now doing us the favor of urging us to a profound consideration of what privacy and liberty mean in the 21st century.

33 Responses

  1. I foresee some sort of system of anonymous drop-boxes and PO boxes developing across the country,
    and a return to handwritten letters routed through this system.
    Collecting the massive amount of electronic data that is now ruffling so many feathers is a cake walk,
    compared to having to steam open a million letters a day,
    scan the contents,
    and then put them into the database.
    .

  2. One might imagine that the mind-linked aliens that arrived to erase all the pesky humans and scoop all the useful resources out of Planet Earth in that wonderful hopeful “Independence Day” movie, also dispensed with any kind of “privacy and freedom” as our “constitutional” mythology would hold them to be. So, too, the Borg, for you Star Trek aficionados.

    Of course, you get the “freedom” from thoughtfulness and personal responsibility and morality that comes with enforced and eventually automatic and comforting Groupthink. Ask members of any megachurch or other identity-based affinity group how it works…

  3. Recasting this issue in terms of privacy, as opposed to the reasonableness of searches or the applicability of rules designed for telephone switch boards and paper envelopes, makes a lot of sense from a legal, constitution, and political perspective.

  4. We might also usefully ask, “Do the mainstream media and Washington’s elites threaten 9th, 14th Amendments, ‘Inviolate Personality’?
    “That so many Americans, including members of the Washington punditry, are so willing blithely to abandon these rights and that liberty is absolutely appalling. You have a sense of how they would have behaved in the 1930s if they had been Germans after Hitler’s coup.”
    This malignancy should come as no surprise. There have been countless warning signs. Among the worst was the skit created in Bush’s White House for the 2004 Radio and Television Correspondents Dinner that had Dubya making fun of the non-existent WMDs that promoted the war on Iraq. This obscene performance promoted lots of sycophantic laughter among the guests while in many homes in the United States and Iraq survivors were grieving over their lost loved ones or caring for the physically and psychologically maimed. Only one guest, David Corn, now of Mother Jones, had the integrity to walk out during this obscene attempt at humor. link to thenation.com
    And today, on CNN (the most trusted name in news for the gullible) its list of the ten worst scandals of 2013 had Edward Snowden bundled with Mayors Ford (Toronto) and Filner (San Diego) and Anthony Wiener. To add another knife in Snowden’s back there was the innuendo attached to Snowden taking refuge in Russia. You know what that means, don’t you, fellow neocons and patriots?

    • One hopes that Mr. Obama will end Snowden’s time on the cross with a pardon. Can anyone doubt that it is deserved more, for example, than was Nixon’s? Or that it would benefit Obama by bringing the matter further toward closure with only a slight touch of humiliation? He must see and say publicly that the tendency was wrong and that the Snowden crisis brought that fact to his attention.

    • “To add another knife in Snowden’s back there was the innuendo attached to Snowden taking refuge in Russia. You know what that means, don’t you, fellow neocons and patriots?”

      As someone who is certainly not a neocon, I know that it means Snowden did not have the courage or the conviction to stand on his own two feet and face the consequences of his actions here in the United States. If he had any integrity at all he would have acted and not run away, much as Henry David Thoreau or Daniel Ellsberg and a dozen others who protested against U.S. policy. Snowden has shown himself to be nothing more than a poltroon.

      • ” If he had any integrity at all he would have acted and not run away, much as Henry David Thoreau or Daniel Ellsberg and a dozen others who protested against U.S. policy. ”

        The difference is that Snowden, unlike his critics sitting in the comfort of their own homes, had enough sense to learn from the vindictiveness applied to other whistleblowers and elected to not commit a form of suicide.

        • Without a pardon he most probably wouldn’t see the light of day for another 40 years. What he’s done is infinitely more important than any other whistle blowing I’m aware of. Prison is not a platform for continuing to fight the good fight. I think it’s really important that he be able to join the struggle following up his disclosures.

  5. In principle the NSA struggle reminds me of the great crisis of the Bolshevik Revolution when Spiridonova, bitter enemy of the Bolsheviks and finally undisputed leader of the Left Socialist Revolutionaries, the peasants’ party, then planning a revolt, confronted Lenin and Trotsky on the stage of the packed Bolshoi theater. The issue there was similar, how to formulate the rights of the Russian people then facing the exportation of the Cheka police state (and the red terror) from a small archipelago of cities to the countryside where eighty-five percent of them lived. The SR revolt was put down quickly and the peasantry was engulfed in the early stage of “revolutionary” violence to be completed later by Stalin.

    I don’t think many will see any analogy for the present day, but here we are, creating secret institutions and universal domestic spying procedures aimed at our entire population in a time of ostensible liberal democratic governance which fit an authoritarian or even totalitarian police state perfectly. It’s a terrible tendency which Joe Sixpack is not going to give a damn about because he hasn’t spent his spare time reading European history.

    The 20th Century in Europe without much question provides the benchmarks with which to judge these dangerous consolidations of knowledge and power and where they are likely to lead in the form of further, and even ultimate, consolidations.

    The prospect of Muslim terrorism is a tiny matter in comparison to what is at stake over time for the American people.

  6. Snowden is too full of himself. Today (Friday) U.S. District Court Judge William Pauley in Manhattan dismissed an American Civil Liberties Union Lawsuit contending that the NSA’s metadata collection violated the Fourth Amendment. Judge Pauley wrote in his opinion:

    “This blunt tool only works because it collects everything. Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the government’s counter-punch.”

    Good to see a judge view the NSA’s metadata collection program rationally, as a means to protect against terrorist actions against the United States. This will eventually end up at the Supreme Court, where I am confident the program will be upheld.

    • “This will eventually end up at the Supreme Court, where I am confident the program will be upheld.”

      Given the preponderance of conservatives and corporate cronies on the supreme (sic) court you are probably right on this one.

      • The SC is only marginally right wing in US parlance. We have no more ability to judge the outcome in advance than we did with the Health Care Act. In fact the NSA’s surveillance programs should raise huge issues for that branch of “conservatism” usually labeled Libertarian.

        I’m curious, do you see *any* dangers in an Orwellian universal domestic surveillance system such as we speak of here being built into our government fabric without even so much as a sunset provision while we’re still arguably a free people? I sure as hell do. No government, not even our own, can be trusted implicitly . Our 18th Century founders understood it and did their best. But it’s an iron law and circumstances change. It doesn’t even need systematic demonstration. It’s intuitively obvious. Power corrupts, etc. That’s why we’ve got to avoid the slippery slope the best we can. You know damned well that’s precisely what the ACLU is trying to do.

    • “Good to see a judge view the NSA’s metadata collection program rationally, as a means to protect against terrorist actions against the United States.”

      The histories of US courts, including the supreme (sic) court, are replete with examples of judges getting it wrong. Without minimizing the dangers of terrorists, it would be a worthwhile diversion to note that the one-time attack of 9/11 killed around 3,000 people but guns in America take out around ten times that every year.

      • “Without minimizing the dangers of terrorists, it would be a worthwhile diversion to note that the one-time attack of 9/11 killed around 3,000 people but guns in America take out around ten times that every year.”

        That the attack against the United States on 9/11 killing 3,000 has not been repeated is no doubt the result of many of the counter-terrorist measures, from telecommunications intercepts to the drone program, that have been put in place since. We know that follow-on attacks have been planned, and even attempted, without success.

        That guns in America kill many more each year than the 9/11 attacks demonstrates the need for more gun control. Nevertheless, it is a non-sequitur as a discussion point regarding counter-terrorist measures and their constitutionality.

        • “That guns in America kill many more each year than the 9/11 attacks demonstrates the need for more gun control. Nevertheless, it is a non-sequitur as a discussion point regarding counter-terrorist measures and their constitutionality.”

          Isn’t it interesting to contrast our responses to different categories of domestic carnage. Fifty thousand or so dead a year on the highways doesn’t so much as cross our minds. Concern about gun dead is a little more elevated because of mass murders, but really doesn’t strike fear in our hearts. We don’t believe we as individuals will be victims and the reform movement suffers from entropy. But after a century of dishing it out on other continents from behind our ocean barriers, we suddenly experience real fear at the level of “only” three thousand. War can actually be brought to our shores and our response becomes disproportionate, somewhat like what happens in a stirred-up anthill.

          Fear is fine. It’s healthy, constructive. It’s our response to it which is out of proportion. We haven’t been steady under fire. With the first round of incoming we immediately designate as “patriot” programs which couldn’t be better designed but to destroy our liberties over the long haul.

          We’ve got to think this through more carefully. In sum, we’ve got to be willing to accept some casualties in the defense of who and what we are. We do it in war on other peoples’ turf. But here?

        • “But after a century of dishing it out on other continents from behind our ocean barriers….”

          Yes, it is almost a century since World War I began (and will be exactly a century in August next year), and the United States entry into the war in 1917. That, of course, was to assist the British, French, Belgians, Dutch, and others who had been overrun by the Germans.

          Then there was World War II, when the United States joined the war effort in December1941 after being attacked by the Japanese at Pearl Harbor. We allied with the British, Free French, the Soviet Union, and China to fight the most destructive war in history on two fronts and defeat the German and Japanese aggressors.

          And of course we led the United Nations coalition after the North Koreans invaded South Korea in June 1950, fighting a bitter war to a stalemate after re-establishing the line of demarcation at the 38th parallel.

          The United States sure was throwing its weight around and “dishing it out on other continents from behind our ocean barriers.”

        • “That guns in America kill many more each year than the 9/11 attacks demonstrates the need for more gun control. Nevertheless, it is a non-sequitur as a discussion point regarding counter-terrorist measures and their constitutionality.”

          It is a pity you can’t see the irony of this nation’s alleged priorities for your non sequiturs. Hundreds of billions spent on a so-called war on terror that has spawned al-Q’aida affiliates from AfPak to western North Africa and virtually nothing done about American-on-American murders that are many multiples of terrorist-on-American murders.

        • “It is a pity you can’t see the irony of this nation’s alleged priorities….”

          No one has missed your point regarding your view of priorities. To call it “ironic,” however, demonstrates an inability to distinguish between the measures required to fight foreign elements committing acts of war against the United States and those required to fight domestic gun violence. Protection of the United States against foreign attacks has always taken priority.

          That not enough has been done about domestic gun violence is a separate issue but not mutually exclusive of counter-terror measures. They both can be accomplished simultaneously, but they are entirely separate issues.

        • “That not enough has been done about domestic gun violence is a separate issue but not mutually exclusive of counter-terror measures. They both can be accomplished simultaneously, but…”

          But they are both not likely to be accomplished simultaneously when the focus is exclusively on one and the other is virtually ignored.

    • Obviously necessary reforms are already in the pipeline. Obama saw to it in timely fashion. It will likely change the shape of the outcome. Judge Pauley appears to have kicked the entire problem upstairs. Did he do it to buy time for the appeal to become moot? Or, perhaps, so that the court system can provide guidance? I don’t know those answers. But change is in the wind no matter what shape it will take.

      That the NSA’s program is the government’s “counterpunch” isn’t relevant to its constitutionality. Neither is how full of himself Snowden is.

      • The issue will certainly be settled in the Supreme Court. And it would have been in any case, with or without Judge Pauley’s decision.

        • Yes it will, but I’d like to see the ACLU involved. They work hard at seeing Constitutional problems in context and with an eye to the long haul. They must be really focused on this. We live in interesting times.

  7. Supporting Mr. Cole’s observation that Snowden has expanded the conversation, but disappointed that Mr. Cole then does not further comment along the expanded lines. (instead, going into details about court interpretations of constitutional amendments). What Snowden eloquently said, was that privacy is essential to the development of the person. This is true whether the person lives in USA or elsewhere, with or without an “enlightened” constitution. As a greeting shared with all humanity, Snowden’s expanding comment better defines a reason to dig into this struggle. That reason exists irrespective of courts and nationality.

  8. Bill,
    I’ll edit a few lines from above and then add a few more. You misunderstood my thesis.

    It was that after a century of dishing out the fear and indiscriminate terror of modern war on other continents from behind our ocean barriers, we suddenly experienced them ourselves for the first time at the level of three thousand dead in one primitive stroke. “Shock and awe” had actually been brought to our shores and our unseasoned response became undisciplined, disproportionate, somewhat like what happens in a stirred-up anthill.

    I wasn’t judging the legitimacy of America’s entry into the great wars of the 20th Century. Far from it. I was speaking of the fear and terror we as a nation had NOT experienced in that time due to the protection offered by our location. When the phenomenon of modern war finally reached us with its “shock and awe” we were not hardened to it. We weren’t steady. We didn’t handle the fear and terror of it well. The result was panic fraught legislation which is far more dangerous to us in the long run than 3,000 dead and three collapsed buildings. And there were other awful stupidities. Our counter-offensive absurdly became the attack, occupation and ultimate failure to subdue two Muslim countries which had not attacked us on 9/11. We were stampeded off to war before the American people even understood it.

    • “two Muslim countries which had not attacked us on 9/11.”

      You are, of course, correct with regard to Iraq, but wrong with regard to Afghanistan. The Afghan rulers, the Taliban under Mullah Omar, were as complicit in the attack against the United States as if they had planned and launched it themselves, having given safe-haven to Al-Qaeda to plan the attacks and set up terrorist training facilities for on-going terrorist activity. We had every right of self-defense to root out the Taliban regime and Al-Qaeda in Afghanistan. Having done that, I think it was a mistake to engage in counter-insurgency “nation-building.” We should have stuck with counter-terrorism measures when necessary and let Afghanistan sink back into its tradition of rule by warlords, as long as they did not present a threat to the US.

      • Criminal complicity? Unfortunately we Americans are familiar with that. Far more so than are the Afghans. We’ve been complicit in ongoing crimes in the Near East for over forty years and too self-righteous to admit it even to ourselves. And we’ve done it under the heading of self-defense too, another country’s alleged right of self-defense used primarily to justify colonial oppression..

        So let’s say for the sake of the argument that we had a right to subdue and occupy Afghanistan. Does that right oblige us to actually do such a ridiculous thing? Clearly not, so why did we do it if it wasn’t in our interests? Can we discuss that in the open or is it too sensitive? Might we have done it in an effort to improve the quality of life in a tough neighborhood? For whom? Did we do it for ideological reasons even though it didn’t meet any pragmatic standard? And whose ideology might that have been? The neocons’ perhaps? Is there a better explanation for such an absurdity?

        • First and foremost, we are not talking about “criminal complicity,” as if the Taliban were accessories to knocking off a Seven-Eleven convenience store. We are talking about Acts of War. And, yes, we had every right to do what was necessary to root out Al-Qaeda and the Taliban who, together, were responsible for those Acts of War against the United States.

          You seem unable to understand that I am against the fact that the initial action against Al-Qaeda and the Taliban morphed into a counter-insurgency ground war and “nation-building” exercise. That said, we had every right under the doctrine of self defense to de-fang and root out those responsible for the attacks.

        • Why is 9/11 considered an act of war when other similar, if lesser, acts are always referred to as terrorism and crimes to be punished as such?

  9. The attacks of 9/11 cost around 3,000 mostly American lives. How many American lives have been terminated by the “remedies” applied in Afghanistan and Iraq? How many American lives have been wrecked by maimings and PTSD in applying those “remedies” in Afghanistan and Iraq? How about Afghan and Iraqi lives, not that many Americans care about them? How many billions – make that trillions – of dollars have been squandered to pay for those “remedies”? How much of that incomprehensible amount of money became profits and income for the military-industrial junta?

  10. WE, in the form of the Government of the United States under President George W. Bush and Vice President Cheney, “morphed” the War in Afghanistan into a 12 year catastrophe all by ourselves. It did not grow like topsy.

    Why did we do it? It’s not credible that such decisions were driven by the conduct of Mullah Omar leading up to 9/11. I don’t buy it. It doesn’t pass the smell test. The American people couldn’t gain a thing by it but pain, suffering and bankruptcy. It had to have been the result of something else, something more anyway, in the air in Washington.

    The point I’m trying to make is that irrespective of a secondary and factually tenuous war crimes case against a few individual Afghan leaders, we had no palpable national interest in invading and occupying the country and subduing the Afghan people, but we *did it anyway*. We did precisely the same thing in Iraq, urged on by Israel’s neocon partizans and its all-smothering Lobby and with falsified intelligence from an office next door to Mr. Netanyahu’s in Israel. All I could see regarding motivation was neoconservative influence, the Lobby, and an attempt to enhance Israel’s strategic position in the region, in the proverbial tough neighborhood. I still can’t see anything else.

    I hope you fellows will address what I’m saying here. With appropriate, verifiable facts and cogent argument I’ll be happy to change my mind. In the meantime I think both wars to have been field tests of neoconservative ideology which in turn was concocted for the sake of Israel, not the United States.

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