Privacy In America, For Good Cause or Lost Cause -- MLA Writing Project
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Transcript of Privacy In America, For Good Cause or Lost Cause -- MLA Writing Project
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PRIVACY IN AMERICA
ForGOOD CAUSE OR LOST CAUSE
An MLA PAPERby MYSTICALGOD
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Lawrence Privacy MLA
Lawrence
Professor Dumbledor
magical english 101
14 March 2010
Loss of Your Privacy, for Good Cause or Lost Cause?
The right to privacy has not been not expanding, but it has been
shrinking with each passing year, in our country. The dominating
justification used to remove people's right to privacy has been to
prevent varying levels of crime. Terrorism has been one cause for the
most intense change to people's right to privacy. In an ongoing war
against terrorism, we have been confronted with having to weigh
whether the loss of privacy is for good cause or lost cause.
One might start to approach this subject matter as a way to
control what could get out of control. The U.S. Supreme court had
once said:
The warrant clause of the Fourth Amendment is not dead
language. . . . It is not an inconvenience to be somehow
weighed against the claims of police efficiency. It is,
or should be, an important working part of our ma-chinery
of government, operating as a matter of course to check the
well-intentioned but mistakenly over-zealous executive
officers who are a part of any system of law enforcement.
(Powell 481).
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This is more easily said than done, especially when those who
are empowered to regulate laws are the ones who are creating the laws
which need the most regulation. Take the executive order given by
President Bush, as an example.
On December 16, 2005, the New York Times published a front-page
story revealing the existence of a secret executive order issued by
President George W. Bush in the months following the September 11,
2001 terrorist attacks on the United States.(Risen & Lichtblau, A1)
According to the article, the executive order authorizes the National
Security Agency (the NSA) to conduct electronic surveillance on
U.S. citizens and permanent residents inside the United States
without first obtaining a warrant from the Foreign Intelligence
Surveillance Court as man-dated by the Foreign Intelligence
Surveillance Act of 1978 (FISA).
Yet, prior to this order, the realm of searches and seizures
were already in rough waters due to numerous cases involving problems
of pretext. Who is to truly know the real intentions of the officials
behind the search? This resulted in the application of The Fourth
Amendment's right to privacy being used as a remedy rather than a
preventative. Some believe that the problem is wherein the solution
lies, to place greater controls on the actions of policing officials
in order to prevent pretext and other abuses. As Citron stated in his
journal:
Since Whren v. United States, Fourth Amendment analysis has
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failed to appreciate the serious wrongfulness of pretextual
police behaviorespecially searches and seizures. This is
not because a pretext test is impractical or
philosophically unsound. Rather, the problem lies in the
current focus of our Fourth Amendment analysis, which puts
undue emphasis on the individuals right to privacy and
insufficient emphasis on responsible police behavior. The
states investigatory power is held in trust by the police
for the people. If we refocus our attention on the idea
that the police power must be deployed in a responsible
manner in keeping with that trust, we can see clearly what
is problematic about pretext. (Abstract)
But in response to Citron, Judge Robertson, U.S. District Court
for the District of Columbia, argues that pretext by officers may be
distasteful, but it isn't grounds for suppression:
Funny, isnt it, that pretext is a dirty word, a
liability-conferring word, in an employment discrimination
case, or a fraud case, but that in Fourth Amendment
jurisprudence the word has been given a free pass? That,
to use Eric Citrons phrase, the word even seems to open
up a a liberated space for bad intentions? (Robertson
374)
Understanding these opposing views of whether intentions for
taking away a person's right to privacy is justly motivated by good
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cause, or injustly motivated by bad intentions, can give us a better
idea of how to examine, or analyze, today's leading issues concerning
privacy, under a more impartial light. Three leading issues for us to
consider are: wire taps, credit history investigations, and body
scanners.
Wire Taps
Wire taps used to mainly consist of some type of inline device
that would allow listening to a person's phone conversation. Now,
with todays level of computer technology, a wiretap may involve
intercepting emails, digital media (such as video or photos), device
monitors (such as gps systems, baby monitors or othe wireless
devices, blue tooth systems, etc.), or faxes:
The NSA identified domestic targets based on leads that
were often derived from the seizure of Qaeda computers and
cell phones overseas. If, for example, a Qaeda cell phone
seized in Pakistan had dialed a phone number in the United
States, the NSA would target the U.S. phone numberwhich
would then lead agents to look at other numbers in the
United States and abroad called by the targeted phone.
Other parts of the program were far more sweeping. The NSA,
with the secret cooperation of U.S. telecommunications
companies, had begun collecting vast amounts of information
about the phone and e-mail records of American citizens.
Separately, the NSA was also able to access, for the first
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time, massive volumes of personal financial recordssuch
as credit-card transactions, wire transfers and bank
withdrawals that were being reported to the Treasury
Department by financial institutions. These included
millions of "suspicious activity reports," or SARS,
according to two former Treasury officials who declined to
be identified talking about sensitive programs. (It was one
such report that tipped FBI agents to former New York
governor Eliot Spitzer's use of prostitutes.) These records
were fed into NSA supercomputers for the purpose of "data
mining"looking for links or patterns that might (or might
not) suggest terrorist activity. (Isikoff 3)
Opposition to wire taps, and other types of surveillance by
government officials, is difficult to support and to present in
court. The reason for this is because such documents and discussions
are classified as secret. This is known as the secrecy priveledge.
It's hard to talk about, or reveal, a document that you are told you
are not allowed to talk about. Often the media has run into this
problem, and they have been penalized for doing so in the past.
One official, Thomas M. Tamm, chose to speak out about
surveillance methods he considered to be wrong, and he has been under
fire by officials for doing so:
In the spring of 2004, Tamm had just finished a yearlong
stint at a Justice Department unit handling wiretaps of
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suspected terrorists and spiesa unit so sensitive that
employees are required to put their hands through a
biometric scanner to check their fingerprints upon
entering. While there, Tamm stumbled upon the existence of
a highly classified National Security Agency program that
seemed to be eavesdropping on U.S. Citizens. The unit had
special rules that appeared to be hiding the NSA
activities from a panel of federal judges who are required
to approve such surveillance. When Tamm started asking
questions, his supervisors told him to drop the subject. He
says one volunteered that "the program" (as it was commonly
called within the office) was "probably illegal." (Isikoff
1)
Is there any support, other than the obvious, for wiretap
methods of surveillance? Among so much talk against it, while it
continues to thrive, one must realize that perhaps it doesn't
actually need support because it can sustain it's own existence and
intentions.
The most striking fact from both the FDR and Bush
Administration electronic surveillance programs is that the
courts and Congress were powerless to stop them. In
America, Congress is supposed to have primacy. As
Federalist No. 51 puts it, In republican government, the
legislative authority necessarily predominates.288 But in
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the context of electronic surveillance that predomination
had little concrete effect. So, too, with the courts.
Americans pride themselves on a Supreme Court that stands
up to presidents in the name of principle.289 But in both
World War II and the War on Terror, nothing happened in the
courts or Congress that had any practical impact on the
surveillance either.
Credit History Investigations
Anyone with a legitamate business need can investigate a
person's credit history. The information discovered by such an
investigation will disclose material that is protected by privacy
rights. This type of information, according to Privacy Rights
Clearinghouse, contains a data mine of information which includes a
person's Social Security number, date of birth, current and previous
addresses, telephone number (including unlisted numbers), credit
payment status, employment, even legal information. (Privacy Rights
Clearinghouse)
The majority of those performing credit history checks claim
that without such information, they would be taking significant risk
with the person of whom the report concerns. Employers are among this
majority. Amy B. Crane of Bankrate.com lists some arguable reasons
for the need for credit history investigations:
An employer's need to know about potential employees is
driven by a number of factors, according to the Privacy
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Rights Clearinghouse. These include:
False or misleading information given by job
applicants, estimated by some sources at 30 to 40 percent
of all information given on resumes and job applications.
Federal and state legal requirements for certain jobs,
including those that involve contact with children, the
elderly or disabled, as well as some government jobs.
Fallout from corporate scandals, such as Enron and
WorldCom
The Sept. 11 attacks
Negligent hiring lawsuits, where a company is sued
because an employee caused harm to someone else.(Crane)
While Most employers currently hiring will seek this private
information, believing it is their right to know, many people oppose
this process, stating that it is invasive and detrimental to their
access to fair employment and lifestyle. Maryland Delegate, Kirill
Reznik stated:
We are in the great recession and this creates a vicious
cycle, People lose their jobs, that naturally precipitates
them getting behind on bills, their credit scores go down,
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they are trying to find a job to pay off the bills, and
employers won't hire them because of their credit score
(Associated Press)
Body Scanners
Following the Chistmas bomb attempt in 2009, aboard flight 253,
by Umar Farouk Abdulmutallab, Transportation officials (TSA)
announced that several more major U.S. Airports would be receiving
full-body imaging machines, otherwise known as body scanners. The
scanners can show objects hidden under clothing. It's believed that
such a device would make air transportation safer from terrorist
threat. TSA asserts that:
this technology can detect a wide range of threats to
transportation security in a matter of seconds to protect
passengers and crews. Imaging technology is an integral
part of TSA's effort to continually look for new
technologies that help ensure travel remains safe and
secure by staying ahead of evolving threats. (TSA)
Twenty-one airports currently use body scanners.
Because the scanners show the person as completely nude, these
devices have recently faced much opposition.
The ACLU argues:
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Widespread deployment of body scanners does not make sense
as a response to the Abdulmutallab attack. This technology
should not be used as part of a routine screening
procedure, but only when the facts and circumstances
suggest that it is the most effective method for a
particular individual. And such technology may be used in
place of an intrusive search, such as a strip search when
there is reasonable suspicion sufficient to support such a
search. This technology involves a striking and direct
invasion of privacy. It produces strikingly graphic images
of passengers bodies, essentially taking a naked picture
of air passengers as they pass through security
checkpoints. It is a virtual strip search that reveals not
only our private body parts, but also intimate medical
details like colostomy bags. Many people who wear adult
diapers feel they will be humiliated. That degree of
examination amounts to a significant assault on the
essential dignity of passengers. Some people do not mind
being viewed naked but many do and they have a right to
have their integrity honored.
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CONCLUSION
Whether the concern is for safety, or employment, or security,
people have one objective in mind: the right to privacy. The
abundance of evidence is available wherever people look. People
also want safety and security. The remaining choices to be made
are where the line should be drawn to protect people's right to
privacy.
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Works Cited
Powell, Keith (Judge). 407 U.S. 297, 31516 (1972), quoting from Coolidge v. New
Hampshire, 403 U.S. 443, 481 (1971)
Risen, James & Lichtblau, Eric. Bush Lets U.S. Spy on Callers Without Courts, New York
Times, Dec. 16, 2005
Citron, Eric F.. Tuesday, 20 March 2007 116 Yale Law Journal 1072 (2007)
Robertson, James. How Whren Protects Pretext, 116 Yale L.J. Pocket Part 374 (2007),
Michael Isikoff, JUSTICE The Fed Who Blew the Whistle, NEWSWEEK, Dec 13, 2008 (issue
Dec 22, 2008),
Katyal, Neal and Caplan,Richard. The Surprisingly Stronger Case for the Legality the NSA
Surveillance Program: The FDR Precedent, GEORGETOWN LAW
Faculty Working Papers, Stanford Law Review, 2008
Privacy Rights Clearinghouse/UCAN. Fact Sheet 6: How Private Is My Credit Report?, Posted
November 1992 Revised May 2009,
Crane, Amy. Why Employers Need to Know About You, 2010,
Associated Press, Employers checking credit history, March 2, 2010, The Washington Times,
Imaging Technology, Transportation Security Administration, 2010,
ACLU Backgrounder on Body Scanners and Virtual Strip Searches,January 8, 2010,
http://www.newsweek.com/id/174601/page/1http://www.privacyrights.org/fs/fs6-crdt.htmhttp://www.background-checks/http://www.washingtontimes.com/news/2010/mar/02/employers-checking-credit-history/http://www.tsa.gov/approach/tech/imaging_technology.shtmhttp://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-http://www.privacyrights.org/fs/fs6-crdt.htmhttp://www.background-checks/http://www.washingtontimes.com/news/2010/mar/02/employers-checking-credit-history/http://www.tsa.gov/approach/tech/imaging_technology.shtmhttp://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and-http://www.newsweek.com/id/174601/page/1