The Surveillance State's Greatest Enemy? The U.S. Constitution

Even if proponents of the NSA win over public opinion, their agenda will still be contrary to the Fourth Amendment.

David Gray/Reuters

When The Washington Post reported that 63 percent of Americans are "willing to give up personal privacy to let the federal government investigate terror threats," the polling data seemed like bad news for privacy activists and civil libertarians. But Reihan Salam argues that the 32 percent of Americans who oppose giving up privacy in the name of national security are winning. "They don’t need a majority of the electorate to embrace their position in order to achieve their goals," he writes. "They merely need a vocal, well-organized minority."

To support that analysis, he points to the experience of gun owners, who've defeated various firearms restrictions even when a majority of Americans favored them. The intensity of their pro-gun views helps them to succeed, he observed, as do their strong social bonds, facilitated by pastimes like hunting and going to gun shows, where they see other gun owners, spread political information, and channel their intense views. Gun control advocates have no equivalent social ties.

Salam believes that surveillance skeptics have a similar edge over surveillance defenders:

No, not all of Snowden’s biggest fans in America are affluent, well-educated libertarian technophiles who spend much of their spare time socializing on lesser-known corners of the Web. But these groups certainly overlap. Just as hunting and target shooting are ways that older gun owners cement social bonds, gaming and obsessively following Reddit could serve much the same function among young surveillance skeptics. Libertarian Republicans like Kentucky Rep. Thomas Massie, Michigan Rep. Justin Amash, and Kentucky Sen. Rand Paul have recognized the growing power of this constituency, and they cater to it by regularly addressing libertarian groups and pushing for surveillance reform... gets worse for the defenders of surveillance authority. The Snowden revelations didn’t just make working for the NSA less attractive. As Julian Sanchez, a privacy expert at the libertarian Cato Institute has explained, the revelations badly embarrassed major U.S. technology companies, particularly those that have substantial operations outside of the country. Suddenly the notion that Google and Facebook were essentially arms of the U.S. government seemed like more than a paranoid fantasy, particularly to consumers in Europe and Asia already inclined toward anti-Americanism. Before the revelations, these companies could work closely with the U.S. government to facilitate its surveillance efforts without ever being held to account. Even if they objected to getting pushed around by Uncle Sam behind closed doors, they had little incentive to make a stink about it, as doing so could jeopardize their business by raising suspicions. After the revelations, the international reputation of U.S. tech giants took a hit, and they had little choice but to push back forcefully and to ally themselves with civil liberties groups.

While I don't know who will ultimately win the fight over surveillance policy, these are, indeed, among the factors that give privacy advocates a fighting chance. I'd only add that there is an even bigger advantage that civil libertarians can press, and it too is helpfully illuminated by way of analogy to the gun-control debate. The NRA's most significant advantage is the 2nd Amendment. With its adoption, the Framers decided that the right to bear arms should be protected even in a future instance when a majority of the public and the legislature might feel otherwise.

Surveillance policy is comparable: 63 percent of Americans may be willing to sacrifice privacy in the War on Terrorism, but they lack the power to overturn the Fourth Amendment. Many seem to have forgotten its actual text, so here it is in full:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That is the law of the land. And the NSA is violating its letter and spirit, no matter how many times its defenders use dubious legal reasoning to argue otherwise. The right of the people to be secure in their "persons, houses, papers, and effects" is meaningless if the NSA can seize and later search details about everyone's communications. The requirements for probable cause and particularity cannot be squared with surveillance that implicates practically everyone. The Fourth Amendment's historic attempt to end general warrants cannot be viewed as a success so long as the government is prying into the private affairs of tens of millions of people who are not even suspected of any wrongdoing.

The government was able to conduct mass surveillance, in spite of the Fourth Amendment, partly by hiding the nature of their actions from most of the country. Thanks to Edward Snowden, that is no longer possible. In addition to facing a tougher political battle over spying on innocent Americans, surveillance-state defenders face the possibility of winning public opinion only to lose in the courts.

Over to you, Justice Sotomayor.