What's the "concrete harm" in a little government surveillance?

Professor Fried queries what's the "concrete harm" in a little friendly surveillance?
A few days ago the Boston Globe published this opinion piece arguing that President Bush's conduct in engaging in surveillance was justified by "urgent necessity." Nothing could be further from the truth. There has been no suggestion that the unauthorized surveillance was successful, or was even helpful. There is no guarantee that the "few key" words that Fried suggests will assist law enforcement, will not be expanded to include "code words". Could those code words be common, everday words that encompass everyone's everyday language? Of course. At what point does Fried suggest that individuals should be allowed to have unmonitored conversations; where does warrantless monitoring end?

The appropriate test for whether "concrete harm" will result from monitoring is by answering a simple question: "If every law abiding person within the United States believed that the government would monitor everything that was said to another individual, would our life change?" Obviously, the answer is "yes."

Obviously, we would not be as free to speak if we believed that a third person, who lacking the context of the relationship, of the topic, and of the entire conversation, would analyze that conversation for the presence of an intent to commit an unlawful act. The absence of an unfettered ability to speak candidly, and without reservation, would diminish the entire population's ability to create, discuss ideas, solve problems, politic, engage in business transactions, and develop personal relationships.

Professor Fried is naive to believe that the information collected would not be maintained, and would only be used for legal purposes. Assuming that no conversation is safe from electronic monitoring, is it beyond the imagination to suppose that a government employee might be able to listen in to discussions involving businesses to obtain and trade on "inside information?" The opportunities for abuse of this power are countless. Fried makes no suggestion as to how that abuse should be avoided. Rather, he merely implies by silence, that the government is beyond such reproach.

The value of privacy, i.e., the "concrete harm," arising from a loss of privacy can be easily determined by looking at totalitarian regimes who interfered with their citizens' ability to communicate without fear: the Soviet Union, North Korea, and military-junta era Argentina. Countries that were willing to impose intrusive internal security later proved incapable of creating an economy able to feed its citizens, and are now "reorganized."

The genius of the drafters' of the Fourth Amendment's proscription against unreasonable searches and seizures is now apparent. The prohibition against wire tapping, and the promise of communicative privacy, remains a bulwark of protection of the rights guaranteed by the First Amendment, which in turn allows creativity and innovation, which results in prosperity.

I can't believe a law professor, let alone a state supreme court justice, would write what Fried wrote.

Article below:




By Charles Fried | December 30, 2005

PRESIDENT GEORGE W. BUSH has acknowledged that he authorized surveillance of electronic communications between people in the United States and people beyond our borders without asking for court authorization. The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it.

I am convinced of the urgent necessity of such a surveillance program. I suppose but do not know -- the revelations have been understandably and deliberately vague -- that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G-Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?

We should ask ourselves what concrete harm is done by such a program. Is a person's privacy truly violated if his international communications are subject to this kind of impersonal, computerizerd screening? If it is not, at what stage of further focus do real, rather than abstract and hysterical concerns arise? And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?

If of all government, then we are in a state of mind that renders us incapable of defending ourselves from real threats. If of this administration, then can we afford to disarm the only government we have until the result of the next election, which is likely to be as partisan and closely divided as the last?

The resolution of this dilemma to allow both the use of an important tool of national security and respect for the rule of law needs ingenuity, discretion, and a good faith search for sensible solutions. So far I have heard only alarmist and hyperbolic pronouncements calculated neither to illuminate nor resolve this problem.

Charles Fried teaches constitutional law at Harvard Law School. He served as solicitor general in the second Reagan administration and as a justice on the Supreme Judicial Court of Massachusetts.