The makers of our Constitution [* * *] sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against the government,
the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.
Louis D. Brandeis, Dissenting, Olmstead v. United States, 277 U.S. 438 (1928).
I'm not going to be handling much of Justice Brandeis's great statement on "the right to be let alone," but I am going to look at one implication of it. I also intend to keep repeating Brandeis's point for the foreseeable rest-of-my-life and to expand it; Americans also have a right to be left alone by people other than the government, people who don't know us, don't give a rat's ass about us personally, and just desire something from us: our votes, labor, and/or, usually, money.
All I want to deal with here is the very basic idea that if we do have a right to be left alone, especially by the government, then the government shouldn't get intrusive unless they really, really have to, and that those intrusions should be strictly limited.
Specifically I wish to deal here with the basic principle that extraordinary threats can indeed justify extraordinary intrusions, but only extraordinary threats — not the ordinary kind — and only to the degree necessary to meet the threats.
What will not be here is my rant on the National Security Agency, or Google, needing to stay the hell away from our transmitted data. I want to go back to older issues with the Government of the United States — and the States and smaller jurisdictions — and the Fourth Amendment in its mostly pre-computer, and both pre- and post-"9/11" applications.
The Fourth Amendment, as you would recall from high school civics if we still taught such subversive, non-job-training, frills-courses — the Fourth Amendment mandates, "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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Because of the threat of planes' being hijacked, and then planes' being bombed, we Americans submitted to airport screenings.
All right: extraordinary threats there.
Along with the searches, however, came the doctrine of what I'll call "What the fuck, if something turns up — anything turns up — in a legal search, we can use it against you." (Please note that I did not do well on the Law School Admissions Test and that it's safe to assume lawyers have more formal labels for the doctrine.)
Uh, no. By any name, application of that doctrine with required, routine searches is not right.
If the TSA person thinks s/he sees a half-pound of C4 in your carry-on bag, they have the right to stop you and make you open the bag. If it is not a half-pound of high explosive but only your quarter kilo of cocaine on top of your hotel-room-reading child-porn collection, they should wish you a safe flight and good luck getting through, say, Turkish Customs and Immigration.
I am serious here: terrorism is an extraordinary, direct, and immediate threat; illegal drugs are not. If you have a kidnapped child with you that you're dragging off as a sex slave: that's an extraordinary, direct, and immediate threat to the child; pornography even of the vilest sort is not.
Similarly if you want to enter a prison as a visitor. The authorities have the right to put you through a metal detector and even pat you down to make sure you're not smuggling in weapons; they don't have the right to check out your mouth and rectum to be sure you're not smuggling in drugs — not unless they have good reason to suspect you're bringing drugs in for a worker in the kitchen to use as part of a plot for a mass poisoning.
And similarly the cops have the right to pat you down if they arrest you. They don't have the right to routinely shackle arrested people or to strip search you as part of "Welcome to Jail" routine. Guns are one thing; if you happen to walk around with a condom of heroin in your vagina or rectum, that is another thing: weird, and maybe a threat of some sort, but not an extraordinary threat or a danger to anyone except yourself, if that condom breaks.
Extraordinary threats, clear and present dangers — oh, yeah! I want the cops and FBI and TSA and the rest of the bureaucratic alphabet to work hard to protect my precious ass. Lesser dangers, though, I want them off of, and out of, my ass, especially literally.
I also want them out of my computer's information contents if I travel with my laptop. No high explosives in it or what looks like nerve gas or an itty-bitty generator of a massive electro-magnetic pulse? Then pass it through; there's no reason to go figuratively pawing through the files, not even if they are mostly Salafist calls to Jihad and instructions on how to make bombs.
(If you're pretty sure I have bomb-making instructions, don't stop me from entering or leaving the USA; have me followed to my co-conspirators.)
I know that there are Americans out there with different value systems; one of my best friends is a good Leftist on most things but a Navy vet strongly into protecting people. How is this, then, at least for airports and as a concrete example for more generalized thinking though the issues?
Two lines at airport security. Line 1: They do everything they can to keep you safe and secure. Line 2: Back to basics. I want Line 2, where your luggage goes through X-ray (or whatever) and you go through a metal detector and where the plane has a solid door to the cockpit that's locked from the inside during the flight (with plastic urinals for the cockpit crew, female, as well as male). And in Line 2 you're reminded that the rules have changed since the old days when skyjacking was the fear and that nowadays you resist nasty people making threats.
Hey, if a guy with a nail clipper can take over a planeful of adults — most of us armed with pens and credit cards and a lot of wasted time watching movie secret agents weaponizing pens and credit cards — then we pretty much all deserve to die. If a guy with explosives taped to his scrotum can blow a hole in the plane, hey, Line 2 flying is still safer than driving a car.
As recent history has shown, Justice Brandeis was wrong about "the right to be let alone" as "the right most valued by civilized men"; at least in the USA, we value it less than marginal increases in safety. The right to be left alone is still, however, "the most comprehensive of rights," and one that we Americans must strive to take back, even when doing so puts us in a bit of danger.