The NSA and Privacy: Why Conservatives Should Not Be Sanguine

imageDefending the NSA’s program that collects information about the American public’s phone calls and emails, President Obama offered this bit of doublespeak:

Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision that we go through a whole bunch of security at airports, which when we were growing up that wasn’t the case…. And so that’s a tradeoff we make, the same way we make a tradeoff about drunk driving. We say, “Occasionally there are going to be checkpoints. They may be intrusive.” To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom. I don’t think anybody says we’re no longer free because we have checkpoints at airports.

What’s the difference between a “sacrifice” and a “tradeoff”?  If I’m being charitable, I might point to the penultimate sentence and conclude the president means that we don’t need to “abandon freedom,” i.e., in its entirety, in order to have security.  But why should I be charitable if the president’s not?  After all, no one is offering that “false choice” of “abandoning freedom” to get security.  No, the “false choice” we’ve been talking about since at least 2001 is the degree to which we should sacrifice some of our privacy to achieve some additional measure of security.  A trade-off, you might say.

But forget what the right balance is between freedom and security.  The problem is not that we haven’t gotten the balance right (I’m basically sanguine on that point, or, perhaps more precisely, uninterested).  It’s that we misunderstand the stakes.  This is especially frustrating on the right, because usually this is the first (sometimes only) thing conservatives get right – i.e., banging on the importance of individual rights and limited government.  But on this issue, conservatives who are “sanguine” about the NSA’s “PRISM” program have abandoned their principles.  I’ll explain.

I’ve never like the idea of “trade-offs.”  In the example of free speech, not being able to “shout fire in a crowded theater” or hurl “fighting words,” etc. have never seemed to me a sacrifice of any freedom, properly understood.  This is not justifiable conduct in the first place, and thus never part of “the freedom of speech.”  What constitutes “justifiable conduct” is at the heart of both our freedoms and the government’s authority to act.  This is roughly codified in the “unreasonable search and seizure” clause – the government has authority to act only where reasonable, i.e., justified, to deprive an individual of his rights, or else in instances where the individual has no right in the first place (e.g., searching in a public place).

The government is theoretically able to engage in determinations of what searches/seizures are justified in individual instances:  We can gather evidence to determine whether there is justification (i.e., “probable cause”) to search John Doe’s house.  If John Doe engaged in wrongdoing, he has forfeited his privacy, thus making the search/seizure justified.  This is how the eternal tension between the individual and government plays out:  The government makes out cases against individuals, individuals push back, it is adjudicated through a tribunal of some sort, and because of the regularity and balance of powers and burdens in that delicate process, we can all be reasonably satisfied with the legitimacy of the outcome.

But in a massive, impersonal program like PRISM, all this goes out the window.  No individualized determinations.  No “probable cause.”  Not even “reasonable suspicion.”  A judge is thrown in the mix, apparently, but not in the regular sort of way we’ve come to expect in legitimate conflicts between man and state.  These doctrines and procedures were developed around a concept of individual and natural liberties vested in individual persons, in which the government’s burden was to show good cause for exercising power in the form of evidence against the individual to justify depriving him of the liberties, to which he accounts to no earthly authority.

PRISM, on the other hand, suggests a new and different arrangement between individual and government in which privacy is not a natural right but a positive right, a right to which man owes and accounts to society and government.  It is what the government decides you may have – and likewise, may take away. The government doesn’t have to appeal to “individual rights.”  It appeals only to the welfare of the collective.  It matters not whether any single individual deserves to keep his liberties intact.  If the government deems the welfare of the collective would be served by the deprivation of individual liberties, it shall be so.

If we want programs like this, we need to rethink the relationship between man and state that this country was founded upon, and which conservatives in particular have sought to protect and restore.

As I say, I’m sanguine about the program itself.  My blood’s not boiling and I’m not losing any sleep.  But after talking with a friend who is less sanguine, I realized that the principle at stake here is the same one that does get my blood boiling on other issues.  And what sort of citizen would I be if I did not object to an ill principle when it is presented?  As Edmund Burke said, and as I am fond of quoting:  “In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle.”

Conservatives should be consistent and oppose this program, whether or not we are actually worried about our “metadata,” because it is founded on an ill principle.

[Originally posted on the main page]

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

Comments are closed.