By David Simon's Own Logic, NSA Surveillance Should Alarm Him

* Incidentally, how did the invasive wiretaps used by those Baltimore police officers work out? Did listening in on all the payphone calls end the drug trade in the city? Or was the tradeoff something like, government seizes more power to fight problem, but problem doesn't get better?

** It's been awhile since I read Homage to Catalonia, but as I recall, some leftist fighters focused on erecting barricades to stop the fascists; others focused on haranguing fellow leftists about how they weren't fighting the fascists the right way. Of course, the leftists in Spain had substantial disagreements. Whereas Simon, who complains that no one cared about a heavy-handed surveillance state when it only affected poor blacks, seems oblivious to the fact that the leftists going "to the barricades" against the NSA -- Glenn Greenwald, the ACLU, and Marcy Wheeler, say -- have applied the very same principles they're invoking in the NSA case to all sorts of other injustices, and are on board with every critique of civil liberties abuses Simon makes.  

*** Julian Sanchez is worth reading at length here: makes a difference when the acquisition is on a "grand scale." In a 1983 ruling that found no Fourth Amendment violation in the short-term tracking of a single automobile, Justice Rehnquist acknowledged in passing that "dragnet-type law enforcement practices" involving mass tracking might require the Court "to determine whether different constitutional principles may be applicable."

In the far more recent case of United States v. Jones, the court unanimously rejected long term tracking of a vehicle using a GPS device, though on a variety of grounds. Justice Alito's concurrence--whose reasoning was explicitly endorsed by five justices--observed that while short term observation of a vehicle's public travel violated no expectation of privacy, "society's expectation has been that law enforcement agents and others would not--and indeed, in the main, simply could not--secretly monitor and catalogue every single movement of an individual's car for a very long period." Alito suggests that the Court's guiding principle should be the "preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted"--noting that while short term visual tailing and surveillance was surely possible at the time of the Founding, 24-hour monitoring for weeks at a time would not have been. It should go without saying that what would have been impossible at an individual level was simply inconceivable at the level of society as a whole.

This more structural approach, which focuses on preserving an overall balance between state control and citizen autonomy, seems to me more appropriate for evaluating mass surveillance programs such as the NSA's... the crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience--though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster, and the Supreme Court's 7-2 ruling, in Bond v. United States, that the Fourth Amendment prohibits even the squeezing of luggage would be entirely baffling. Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too farin the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who--whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good--would seek to use it against us. 
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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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