Privacy Rights, Operational Data, and the US Government
Monday, July 5, 2010 at 09:27PM
Toby Considine in Basics, Fourth Amendment, Musings, Privacy

Thinking about smart energy and the 4th of July generated an essay too large and too personal for publication. A shorter version re-oriented toward the buildings world appeared in the July issue of Automated Buildings magazine (www.AutomatedBuildings.com). This piece pulls together the more personal views from the same article. If you came here from Automated Buildings to find out more about my views, I recommend looking to my previous post on the Internet of Energy.

Several readers have written me that privacy has no place in US Law, and was only discovered as an emanation from a penumbra (in Justice Douglas’s words). I think that this is a profound misreading of the constitution, arising from an awful ruling in a good cause in the 1870’s. The Slaughterhouse Case created a framework that profoundly limited the privileges of citizenship, gutting a key component of the 14th amendment, and by implication, eliminating the 9th amendment from any real meaning.

The 9th amendment, the shortest and simplest of the bill of rights, states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Federalists argued that the whole Bill of Rights was dangerous as it would be impossible to list all rights it would be dangerous to list some, lest there would be those who would assert that government was unrestrained as to the omitted rights. The 9th amendment was so clear and so revolutionary that all parties have tried to ignore it ever since.

The first direction in the 14th amendment is that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These statements hang together on natural law, and on those rights of a held by all citizens, or by all men. As the old saw goes, some statements are so clear that it takes years of legal training to misinterpret them.

Privacy and its twin, the right to be left alone, which Justice Douglas referred to as “the most fundamental right,” are essential to one’s personal pursuit of happiness. Privacy is at the heart of the 4th amendment, which prohibits searches of papers and possessions. Privacy and self-determination were at the heart of the concerns of the first amendment, restricting the reach over conscience held by the state churches of New England. They were fundamental to the founder’s concept of natural rights. Natural rights are not granted by the government, and nor can they be legitimately taken away (alienated) by government.

A simple reading of the simple words of the Constitution would include natural rights among the privileges of citizenship, as opposed to the obligations of subjects. Recent scholarship shows that Jefferson expunged the work subject from the Declaration, substitution citizen. The Ninth amendment and the privileges and immunities clause of the 14th, have been ignored for years. Recent opinions from the Supreme Court have invoked each of them.

The rejuvenation of the 9th and the 14th can’t come quickly enough. Courts have ruled that inspection of cell phones, including contacts and email, is no concern of the 4th amendment. The Justice Department argued last spring that there is no expectation of privacy over cell tower operational data, pinpointing your location at all times. New laws enable direct federal control and tracking of the internet. Direct load management of energy use, one competing model of the smart grid, would expand the trove of operation data about our lives and homes beyond anything previously seen.

All because of men of good think society need this information. As Milton wrote, “Necessity, the tyrant's plea".

The strains between a good new idea, so necessary and so important, and basic liberty and natural rights are not new. We can see them in quotes from presidents early in the last century, in their 4th of July addresses.

From Woodrow Wilson, our most progressive president:

“The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstances of the day in which it was conceived and written.”

From Calvin Coolidge, so conservative he as thoughtless:

“About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.”

Today, there is a new urgency to privacy issues. We live our lives on-line and connected. Tweets and cell calls expose our every move. Digital storage costs have plummeted; there is now no reason to ever throw out information. With tracking and record-keeping essentially free, there is really no impediment to the government tracking everyone, all the time and keeping it forever. Cheap and powerful search matched to that cheap and boundless storage means nothing ever goes away. As the CEO of Google stated :Privacy is dead, get used to it.”

Without privacy, and mandatory rules concerning privacy, no part of our lives will be free from government meddling, from Wilsonian good intentions. We need to reassert privacy, all privacy, and rediscover the subversive rights of the 9th and 14th amendments.

The US has always been the land of the frontier. “Go west, young man!” Horace Greely famously spoke. West was where you could make something of yourself, perhaps a new something that was not what you once were. The West was where you went to start over. The west was the creator of a classless world, one where your parents did not matter because no one had a past. Failure to protect privacy is the final closing of the frontier.

Article originally appeared on New Daedalus (http://www.newdaedalus.com/).
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