Notes on the Fourth and First Amendments
[Below is another guest piece by my altered-ego D.L. If you'd like to read more, see link below. Best, Harry]
A debate is underway between the FBI and Internet carriers like Apple about whether the right to privacy,
guaranteed, we thought, by the Fourth Amendment, should be protected by
encryption that even the carrier cannot read, let alone an intelligence agency. This is a perfect case for opponents of old school Fourth Amendment privacy laws because protected material can be stored on a terrorist's cell phone, a formulation conducive to public acceptance of the government's right to snoop.
In contrast, the First Amendment, supposed to protect us from censorship, is weakened by something different, and surprising.
Regarding the Fourth, we don't want to admit it, but as a result of pressure from the War on Terror and windfalls from evolving technology, the battle for the Fourth Amendment right to privacy is already lost without a shot fired in opposition by America's estimated 81 million gun owners. Though privacy is still protected by a U.S. postage stamp on a sealed, mailed letter, our online correspondence has no privacy protection at all. The many people in a position to read your emails are constrained only by an honor system, at best. The Los Angeles Times reveals ("Vehicles are like 'wiretaps on wheels,'" 8/7/23) that conversations in cars are recorded by car microphones and sold to unkown third parties without restraints of any kind (Tesla warns drivers that blocking sale of data may "negatively impact crash protection.") Even privacy proponents are moving away from arcane assertions about the Fourth Amendment, which no government would adopt today as written, including ours. The situation is something of an embarrassment that
we'll need to figure out at some point, though it's hard to see how we could
endure the commotion of a constitutional process removing the privacy protections
of a bygone age, even if the purpose is to replace them with something more specific and effective. We'll probably just have to live, for now, with this contradiction between
the Constitution and our actual society.
The First Amendment, designed to protect us from censorship, appears largely intact, but for a strange reason: public indifference to information that you'd think someone would want to censor. Consider Dexter
Filkins' findings about covert U.S. funding of the Afghan Taliban during our war against it (“The Afghan Bank Heist”: http://www.newyorker.com/magazine/2011/02/14/the-afghan-bank-heist). Filkins tells of an investigation of Afghan war funding by the Afghan Threat Finance Cell, with members from the FBI, DEA, Treasury and Pentagon, which "uncovered one of the darker truths of the war: the vast armies of private gunmen paid to protect American supply convoys frequently use American money to bribe Taliban fighters to stand back. These bribes are believed by officials in Kabul and Washington to be one of the main sources of the Taliban's income. The Americans, it turns out, are funding both sides of the war."
After Filkins' piece was
published in 2011 in the New Yorker Magazine, which has over a million readers, there was silence from all quarters. Even veterans groups were unmoved by news that thousands of American
troops were killed or wounded fighting a fake war. Nor have feminist groups appeared to take notice that a regime which, with Iran's, is one of the two most repressive of women in the world, was put in place by U.S. policy (including liberal, Democratic policy under Clinton, Obama and Biden). Who needs Big Brother to censor the news when no one cares anyway?
Americans, it seems, are so sated by our surplus economy that we can't rouse ourselves to consider anything theoretical, like the idea that the American government
might unnecessarily prolong or start wars to serve the economic interests of
what President Eisenhower, in a moment of candor that no current politician dares emulate, called the military-industrial complex (I've added "media" to
Eisenhower's formulation: "the military-media-industrial complex," since the
leading facilitator of war today is media).
Because of this indifference, I don't anticipate interference with my own free
speech, just as the other estimated 20 million bloggers in the world are left
to spout as they please. Who cares? The reading audience is so
fragmented that nothing like an effective political response to the current flood of uncensored, public information, no matter how concerning, can emerge.
Back to privacy, without a real Fourth Amendment (i.e. one
that has to be obeyed) the Founding Fathers are out of the picture, and we are back to square one. The time may come when people miss their privacy rights. At the moment we haven't even noticed they are gone.
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