It Is Dangerous to Be Right When the Government Is Wrong (17 page)

The State Department and the Department of Homeland Security refused to grant the team this request. Only after public embarrassment at the debacle did Secretary of State Hillary Clinton finally agree to waive the travel restrictions. The next time you believe that the government has your best interests at heart when it restricts the freedom to travel, remember this story of the government's unjust treatment of the Iroquois Lacrosse Team. Perhaps next time they should carry fake weapons instead of tribal documents, as that would at least guarantee them a one-in-four chance of successfully reaching their destination.

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Conclusion

In sum, the urge to move about the world, after self-preservation, is the most fundamental of human yearnings. Although our human desires to think and work hard may be chilled with free speech restrictions and taxation, as animate beings we lose our naturally endowed vitality when the government mandates where we can and cannot go. Thus, the right to travel is not only essential to, but
symbolizes
freedom. Perhaps then it should come as no surprise that curfews, internment camps, and unlawful imprisonment are common denominators amongst despotic regimes. Why erode freedom with the slow but unstoppable tide of indoctrination, when tyrannical leaders can achieve their end goal—complete subordination—much more efficiently with restrictions on the right to travel? Although the government may claim to have our best interests at heart when it commands who may go where and at what times, to grant it that power is to subject our liberty to the beneficence of a government which legitimized slavery for two hundred years. The current War on Terror proves that without the constraints imposed by our withering Constitution, it would continue to do so for many years to come.

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Chapter 6
You Can Leave Me Alone:
The Right to Privacy

On a Saturday morning, have you ever found yourself with nothing to do? Maybe you decided to take a trip to New York City and spend time with your best friend from college. Together you visit the South Street Seaport and take in the views of Brooklyn while grabbing lunch. Once you finish your meal, the two of you decide to stroll by the Stock Exchange in the Financial District and then pay your respects at Ground Zero. After an exhausting day, you return to your friend's apartment and realize you left your cell phone on the couch. Your phone shows five missed calls, all from your mother, who has been in a “tizzy” all day because she could not reach you. You tell her to calm down and not to worry. The government watched you all day.

That's right. The government watched your every move while you were in downtown Manhattan. In response to the September 11th 2001 terrorist attacks, the New York Police Department (NYPD) implemented the Lower Manhattan Security Initiative (LMSI). Starting in 2007 (if it was so imperative why did they wait six years?), the NYPD installed more than three thousand public cameras and one hundred license-plate-reading devices. These publicly owned cameras, cameras of private landowners, and the publicly owned license-plate-reading devices are fed into an operations center manned by uniformed police. And while you may try to avoid these cameras by staying north of Canal Street, you're out of luck.

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Currently, cameras are being installed throughout Midtown Manhattan. In response to the attempted Times Square bombing by Faisal Shahzad on May 1st 2010, New York Mayor Michael Bloomberg flew to London to take a look at its surveillance camera system, or the “Ring of Steel.” The “Ring of Steel” is composed of five hundred thousand cameras capturing an individual's identity (within London) an average of three hundred times a day. Mayor Bloomberg is now hoping to duplicate this Orwellian system in New York and install thousands of cameras in Midtown Manhattan by the end of 2011.
¹
However, Mayor Bloomberg appears unsure as to whether this gross invasion of your privacy would work. He stated, “It's not clear that they would have helped in Times Square. Other than if the perpetrator knew there were cameras, he might not have tried to come into Times Square.” Despite his uncertainty of success, Mayor Bloomberg and other government officials continuously attempt to convince you these cameras and license-plate readers are there to combat terrorism and protect your safety. Unfortunately, the reality is the cameras act as a government-sanctioned intrusion on your natural right to privacy: Your right to be left alone.

But do these cameras make us safer, or do they only make us
feel
safer, and lead us to believe that at least the government is doing something; or are they just another sacrifice of a fundamental liberty at the altar of government expansion? And if we
feel
safer, but are not
actually
safer, won't that false sense of security (thinking that the government is protecting us when it is not) make us
less safe
? As previously described, when the crackpot Faisal Shahzad parked a bomb-filled SUV in the midst of Times Square, in the heart of New York City on Saturday evening, May 1st 2010, he unwittingly illustrated what little effect these cameras have. Not only did the local cameras fail to deter Shahzad from attempting to murder thousands of individuals; they also failed to identify him. In fact, Shahzad was on a plane at JFK Airport, an hour travel time from Times Square, before the police caught him. Clearly, the cameras in place played no role in preventing an attack. It is impossible for the police to monitor these thousands of cameras in real time and thereby thwart crime. The best they can hope to do is to review a tape after a crime has occurred and maybe get a lead on a suspect. That is not prevention or safety.

Fortunately, other governors in our nation are opening their eyes to individuals' calls for privacy. On July 15th 2010, Governor Jan Brewer of Arizona let state contracts expire for thirty-six fixed cameras and forty vans installed with cameras. The dismantling of the cameras and vans began the next day. Brewer's predecessor and the current Secretary of Homeland Security, Janet Napolitano, instituted these devices in September 2008. Behind the guise of advocating road safety, then Governor Napolitano believed the fixed and mobile cameras could generate up to $90 million in revenues to the state in the first year. In order to achieve such revenues, the cameras snapped photos of individuals traveling more than eleven miles per hour over the speed limit and then issued tickets for $181.
²
However, $90 million of revenue was never reached because the payment rate on the tickets was only 26 percent.
³
The refusal of folks in Arizona to pay the tickets issued by the government, and the subsequent dismantling and removal of the cameras and vans, is a testament to the power of individuals standing up for their rights—specifically, the right to privacy.

85

Constitutional Guarantees

The United States Constitution does not expressly state a right to privacy. While numerous historians speculate and propose reasons as to why the Founders did not articulate this right in the text, the most telling reason may be the use of the word
privacy
in eighteenth-century America. In fact, a search of Thomas Jefferson's sixteen thousand writings and letters produces not a single usage of the word
privacy
,
⁴
because in the eighteenth century
privacy
referred to the bathroom or outhouse. Rather, the Founders used the term
security
, which meant to them essentially the same thing as our contemporary understanding of privacy. For example, the Fourth Amendment states, “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.”
⁵

Moreover, additional amendments in the Bill of Rights address the issue of what we call privacy. The Third Amendment, which holds, “No Soldier shall . . . be quartered in any house, without the consent of the Owner,” was directed at the British quartering of troops in the colonists' homes; an egregious violation of security for an eighteenth-century mind and privacy to a twenty-first-century mind. The Founders were determined not to repeat history. They assured the colonists their homes would no longer be invaded on a whim by the agents of the government, and their privacy there would be secure.

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The Ninth Amendment then clearly states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
⁶
The rights retained by the people are the unalienable natural rights, with which you are born. Natural rights can be compared to a sphere within which “individuals must remain free from [government] interference.”
⁷
Privacy is essential to this sphere, and relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Additionally, privacy relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts, or subject themselves to certain experiences.
⁸

For example, the German physicist Werner Heisenberg discovered the principle of uncertainty, or the Heisenberg Effect. The Heisenberg Effect stands for the principle that no individual can repeat the same performance unobserved as he can while being observed. In other words, we change or conform our behaviors when we know we are being watched. Take, for example, your daily job. When the boss is known to be in the office, most individuals are much more diligent than when they know no one is watching their daily actions. The same can be said for cameras on every street corner. If you know you are being filmed and want to whisper “sweet nothings” into your partner's ears, you may refrain from doing so because you know a uniformed policeman may be watching and listening on the other end. Thus, observation alone changes individuals' actions and strips them of their natural right to be left alone.

You're Safe Nowhere: From Polaroids to Street Cameras

While today the natural right of privacy is widely recognized (and widely ignored), the right to be left alone was not always easily conceptualized. While our forefathers inherently valued their privacy, it was not until 1890 that the right to privacy entered the United States as a rational legal theory. In 1890, Justice Louis Brandeis recognized individuals' desire to remain anonymous.
⁹
In his now famous
Harvard Law Review
article, “The Right to Privacy,” Justice Brandeis introduced the concept of a right to privacy when he stated, “The right to life has come to mean the right to enjoy life,—
the right to be le[f]t alone
.”
¹⁰
Moreover, the article reveals that Justice Brandeis was influenced to write on the right to be left alone in large measure by the then growing trend in technological advances.

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Justice Brandeis would be horrified today if he observed the erosion of our right to privacy. In 1890, Brandeis expressed concern over the growing trend in technological advances because he worried that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.'”
¹¹
This was in 1890! One can only imagine what Justice Brandeis would think of the countless cameras, license-plate readers, Web sites with personal profiles and picture-sharing applications, digital cameras, cell phones with cameras and recording devices, wiretapping, face-recognition technology, fingerprinting devices, Google maps displaying aerial views of your home, and similar technologies ripe for government abuse today.

Yet, it would be thirty-eight years before Brandeis advanced this theory in the Supreme Court. In the famous case of
Olmstead v. United States
(1928), the majority of the Supreme Court held the government's wiretapping of private telephone conversations to be constitutional under the Fourth and Fifth Amendments. Justice Brandeis's dissenting opinion, which set the precedent for future cases, gave us the phrase, “the right to be left alone.” Justice Brandeis wrote,

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government,
the right to be le[f]t alone—
the most comprehensive of rights and the right most valued by civilized men.
¹²
(Emphases added)

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Brandeis was correct in his analysis of the Constitution. Nowhere in the Constitution is the government granted the power to monitor or regulate our daily conduct. Remember, the Constitution grants power to the federal government and retains for the states and people that which is not granted. It keeps the government off our backs. (Well, it is intended to do that.) We retain all unalienable rights, and the right of privacy—the right to be left alone—is certainly one of them. By simply being human, all persons have a right to privacy existing far before the founding of the United States. As the majority of the Supreme Court wrote in the case of
Griswold v. Connecticut
(1965), “We deal with a right to privacy older than the Bill of Rights [and] older than our political parties.” That sentence alone acknowledges privacy as a natural, or if you prefer the secular term, fundamental, right, which cannot be taken away without due process of the law.