By Jeff Jarvis
At heart, the NSA debate is about what the government is allowed to do with what it knows and who is overseeing it
I celebrate Judge Richard J Leon’s opinion that the government’s mass collection of communications metadata is “almost Orewellian”, and I decry Judge William H Pauley III’s decision that the NSA’s collection is both effective and legally perfectly peachy.
But I worry that the judges, as well as many commentators and Edward Snowden himself, may be debating on the wrong plane. I see some danger in arguing the case as a matter of privacy because I fear that could have serious impact on our concept of knowledge, of what is allowed to be known and thus of freedom of speech. Instead, I think this is an argument about authority – not so much what government (or anyone else) is allowed to know but what government, holding unique powers, is allowed to do with what it knows.
Indeed, the Fourth Amendment, which is often called upon in this argument, is explicitly about controlling authority:
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.
In the search for a legally protected right to privacy in the United States, begun with Brandeis and Warren in 1890, the Fourth Amendment has been interpreted as affording privacy protection as have the First Amendment (freedom of belief) and the Fifth (freedom against self-incrimination). In each case, though, the right is not so much for something – privacy – as against something – namely, government abuse.
Yet we continue to hold the NSA debate around whether communications metadata is public or private. In the past, such data was presumed to be public because once it was known by a third party, it could no longer be claimed as private. The information on an envelope – metadata to the contents inside: sender and recipient – must be known by a third parties along the way, mail carriers and sorters, to get to its destination. So it is not private. This same theory was applied to the telephone as the phone company has to know who’s placing and who’s receiving a call to complete it. Thus the government says it can seek such public information without affecting privacy.
Judge Leon argues, with insight, that scale affects the revelatory impact of metadata as we now use phones to do so much more than make calls:
Put simply, people in 2013 have an entirely different relationship with phones than they did 34 years ago…. Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic– a vibrant and constantly updating picture of the person’s life.
Yes, but my fear with Leon’s argument is that once we we say some amount of data is too much to have, then we will end up debating the line around too much knowledge and that is a line I never want to see drawn. If we start to say that bad things can happen merely if knowledge exists, then too soon we fall into the trap of controlling the extent of knowledge – who may know what and how much they may know and thus who may say what to whom. That is the basis of censorship and ultimately tyranny.
I also fear the impact of Leon’s argument on the notion of “publicness”. Once knowledge is public, it becomes a public good and the person who put it there does not gain the right to somehow withdraw it because of who ends up holding it or what they may do with it. This is why I object to European Commission Vice-President Viviane Reding’s notion of a right to be forgotten – for that gives someone the right to tell others what they may not know. I also object to the idea that there should be a presumption of privacy in public, for that would harm the journalist’s – that is to say, anyone’s – ability to report on what they witness in public, especially acts by public officials. It could also affect the ability of researchers to collect data and find unforseen connections and correlations.
Think of privacy this way: when I tell you something about myself, that fact is then public to that extent. What happens to it is now out of my hands; it is in yours. Thus, in Public Parts, I defined privacy as an ethic of knowing someone else’s information (and whether sharing it further could harm someone) and publicness as an ethic of sharing your own information (and whether doing so could help someone).
When I researched Public Parts, Danah Boyd sat me down and explained how I should understand the gathering versus the use of information:
Privacy isn’t just about controlling the access to information but controlling how it’s used, how it’s interpreted…. If you walk into my office applying for a job, with one quick look I’m going to be able to get a decent sense of your gender, your race, your age.
Antidiscrimination law doesn’t forbid her from knowing these bits of information about me. Instead, it forbids her from using them against me in hiring. Of course, she could still deny me the job because of my gray hair. But if she is caught in a pattern of discriminating against applicants on the basis of age, she can be sued.
boyd pointed out an important consequence of restricting use: “If you can’t use the information, it makes a lot less sense to try to find ways to access it.”
So what we should be restricting – with legislation and open oversight by courts, Congress, the press, and ultimately the people – is the NSA’s ability to Read on further …