Privacy and Privileges: The back door to compelling information disclosure

The 4th, and 14th, amendments ensure that the federal and state governments cannot search though our person affects without our permission. Additionally the 1st amendment protects our freedom of speech as well as our freedom of association (considered part of protected speech). Now there are exceptions to this. The most obvious one is the USA PATRIOT Act that I’ve written about before. This act gives the government the ability to do “sneak and peek” searches of your computer and home without your consent or a warrant. That act aside, in general we either need to consent to a search, or the government needs enough information to issue a warrant to allow a search.

The reason all this matters is that most people rely on the government at some point in their lives (many of us on a daily basis). If you don’t think you do, think about a couple examples: first, the case where the government gives you financial assistance. From tax breaks for children, to student loans, Pell grants, to the Montgomery G.I. Bill funds, from welfare to Medicare or social security, it is highly likely that you have, are or will receive some help from the government. In such cases, the government has used this “non-required” assistance to justify searches that would be unconstitutional in any other aspect. The contemporary example is the legal fight going on right now in San Diego over those who receive public assistance. Part of this legislation gives agents of the state the ability to search people homes to ensure that they are complying. Perhaps you feel that this is a fair trade-off to ensure public aid isn’t abused and that it provides an incentive for people to do what they can to get off of public assistance.

The people who make this argument tend to be those who have done well in life and are not subject to such searches (it’s always easier to legislate what someone else should do). Fear not though, this is where the “privileges” part of this comes in. Though legislation like the REAL ID act (currently being fought in a number of states) data is being aggregated and centralized. So if you drive a car, then that information is collected (and if all states comply, then that will be national, this is why many states are fighting the act and why most private investigators use Drivers Licenses as their preferred way to track people). Even if you forgo the car, but you travel by air, then you are still under surveillance (and remember this is surveillance without any reasonable cause to survey you). As has come out recently, airport screeners were cataloging the information of travelers heading overseas. Information like who they were seeing/staying with, what was in their luggage and even what books they were reading was cataloged and stored. The government is “loosely” kept from sharing this information by the Privacy Act of 1974.
Unfortunately, the Supreme Court ruled in Doe v. Chao that the act mandated damages of at least $1000 is only due if the injured party (the one who had their private information given out by the government) can show actual damages from the leak (of course, finding out that someone shared info that got you on a no fly list, blocked from getting a govt. grant or surveyed by the FBI to your economic determent might be pretty tough).

What is clear in these cases is that our view of individual rights is not evolving with our society. We are continuing to interpret our rights in the same manner that was done tens, if not hundreds of years ago. In a world where “privileges” (like driving, flying and receiving assistance) are an integral part of almost every US citizen (and business’) life, we may want to start thinking about the ways we feel privileges are separated from rights. We all appreciate the freedoms we have here in the US. Many of us believe that our privileges are really just extensions of our right, but at present this is not the case at all. Since many of these “privileges are requirements for us in modern life, what we may be looking at is a loophole that’s being actively exploited to circumvent the 4th, and 14th, amendments.

Is this the right balance to strike? That is a decision for the American people, but I don’t think it bodes well when such actions are taken outside of the public light (the traveler information only came to light as part of a Freedom Of Information (FOIA) suit. I think changing circumstances require US citizens to consider the tradeoffs they make, but when these are forced though programs that are voluntary in name only, or are done out of the public sight, the specter of a meddling government, instead of one, by, of and for the people starts to show up.