I'm shaking my head a bit this morning as an intelligence deputy believes that we need to seriously reconsider our notions of what constitues privacy. A revised FISA bill would grant immunity to telecom providers who are now being targeted for allowing customer data to go right to big brother. The deputy's line of reasoning goes like this-people surrender privacy any way to myspace and facebook, so why not extend that to the government? After all, if you knowingly put yourself out there, why would you unkowingly object to the government having at their disposal, all your information? (To see ConservPat's online experience, click here. ) After all, it's not as if the courts are the average person's venue of recourse against larger entities in society, what right do any of us have to bother them? Should we jut get "chipped" and have bar codes implanted in our foreheads and just be done with it, all in the name of fighting terror?

Questions for debate:

1.)Is this plan constitutional? Please cite relevant parts from the constitution.

2.)In expanding observation powers, are we moving away froma "strict constructionist" viewpoint to a "living" constitutional philosophy?

3.)Should private companies be immune to lawsuits when they surrender your information to big government? Why or why not?

Is terrorism a realistic probability to warrant us to rechange our views on privacy?

There is no express provision of the Constitution for a general right of privacy. Rather it is based on the decisions of the Supreme Court in interpreting the First, Fourth, Fifth and Ninth Amendments viewed through the prism of the due process clause of the Fourteenth Amendment in such cases as Griswold v. Connecticut, Roe v. Wade, Cruzon v. Missouri Dept. of Health, and most recently, Lawrence v. Texas. It is the product of an expansive reading of the Constitution rather than a literal interpretation of its provisions. I can remember former Judge Robert Bork (renowned constitutional scholar and foremost exponent of “Originalism” in the interpretation of the Constitution) stating that there was no right to privacy, which did not go down well in the Senate confirmation hearings for his failed nomination to the Supreme Court; albeit today Justices Scalia, Thomas and Alito, as well as Chief Justice Roberts, would be considered to have rather narrow views on the right of privacy; and whether a specific law violates an individual's right to privacy is a subject upon which, ultimately, the Supreme Court has the final word.

The first questions is misleading, the second question is flawed. Misleading because there's more at work here than the Constitution. Flawed because you've got to be a lucky Luddite idiot working on the bench to ignore the Fourth. I don't know how constructionist v. living interpretation comes into play in this issue.

The White House and telecoms have been fighting the lawsuit initiated by Electronic Frontier Foundation, Hepting v. AT&T, for (from Nebraska's article) connecting a device that "diverted and copied onto a government supercomputer every call, e-mail, and Internet site access on AT&T lines". First they tried the states secret line of bull but Judge Walker, a Bush 41 appointee, didn't want to hear it and proceeded with the case. It's being appealed in the 9th Circuit Court. The lawsuit got started when an AT&T whistleblower came forward with the story of telecom complicity with NSA spying.

In order for the latest FISA amendment to stick, which grants retroactive immunity to telecoms that conspired with federal agencies from civil lawsuits and prosecution, privacy needs to be redefined in U.S. Code. Otherwise the telecoms risk other judges interpreting the amendment as unconstitutional. Even if privacy isn't spelled out in the Constitution, however, we should be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures".

Now the White House is working with Senate Intelligence Committee chariman Rockefeller, who has recently been flushed with money from these "patriotic corporate citizens", as The Washington Post called them. This is a far cry from the Rockefeller who wanted to investigate the NSA's spying three months before the lawsuit was filed and complained bitterly about rank partisanship derailing oversight within the committee.

1.)Is this plan constitutional? Please cite relevant parts from the constitution.

No. The law under which the TelCo's are being sued is intended specifically to prevent the government from gaining access to that information without a warrant.

The most relevant part of the Constitution is the 9th Amendment. For those who say that a right to privacy is not expressly written in the Constitution and, therefore, argue that such a right is not protected need to take another look at the 9th Amendment.

2.)In expanding observation powers, are we moving away froma "strict constructionist" viewpoint to a "living" constitutional philosophy?

I would argue that those looking to expand observation powers are arguing for a "strict constructionist" view of the Consitution, but what they fail to realize or accept is that even under a Strict Constructionist view, the 9th Amendment allows for protection of rights not specifically enumerated in the Constitution. So, even under a Strict Constructionist view, the interpretation of the 9th Amendment falls to the Judiciary Branch in terms of whether or not privacy is a right to be protected and in what instances.

3.)Should private companies be immune to lawsuits when they surrender your information to big government? Why or why not?

They should not be immune from the laws that specifically state that they are not allowed to do that very thing. This isn't some ambiguous law that just may apply in this situation. This is a very specific law that very specifically forbids this very activitiy.

Is terrorism a realistic probability to warrant us to rechange our views on privacy?

No.

The Ninth doesn't speak to states with privacy clauses suing telcos in federal court for violating our rights. You can't have it both ways, can you: Leave it up to states to recognize rights not mentioned in the Constitution but initiate class action lawsuits in defense of states rights in federal court?

I'm afraid I don't follow you.

The 9th Amendment states:


This simply means, in this case, that simply because the right to privacy is not specifically enumerated in the Constitution, does not mean it isn't a right and doesn't need to be protected. States rights has nothing to do with the 9th Amendment.

And the EFF is not a State. The lawsuit is regarding a violation of a very specific federal law that prohibits TelCo's from giving this information to the government without a warrant. In giving this information out, the TelCo's are liable for a substanial fine for each instance.

As regards State's with privacy clauses, a State's constitution can allow for more protection than the US Constitution, but not less. It has long been determined by the Supreme Court that the right to privacy is a right protected by the Constitution.

On re-reading this, I realize I got sucked into another one of Nemo's tangential comments. I agree that the 4th Amendment has more to do with this than the 9th.

I confused the Ninth with the Tenth, Entspeak. Still, rights like privacy are specified in U.S. Code, including, if not especially, FISA, not the U.S. Constitution.

Here's the government's motion to dismiss the case on the basis of states secrets. The first two pages cite the First and Fourth Amendments, several federal statutes and a California law. If privacy was understood to be protected in the Constitution the Ninth would be invoked.

As I stated, I was sucked in by Nemo's comment regarding a "general right to privacy." In regards to a "general right to privacy", which is not specifically enumerated in the Constitution, the 9th plays the most important role. But, as you point out, it isn't relevant to this particular case.