INVASION, OF PRIVACY 133 As if this were not enough, officials use the same sort of secrecy ploys used in 1984 to deprive the people of accurate information and to distort history. Orwell understood that the primary purpose of all official efforts to debase language and undermine the reliability of information is to strip citizens of the capacity and confidence to make moral judgments about the government's use of power. His novel demonstrated in a chilling way that nothing invades privacy more than the manipulation of communications in order to destroy the ability of individuals to know truth and thereby defend themselves against psychological manipulation. But citizens are not the only victims of this manipulation. Politicians also suffer as they come to believe their own propaganda and lose the ability to distinguish between images and reality. Richard Nixon was one such politician, who in the end was destroyed by his blind faith in the power of media manipulation, secrecy, and deception. In Orwell's world, the communications revolution strengthened the centralizing forces of an authoritarian state. For a while in the early 1970s, it looked as it the United States might suffer a similar fate, as more became known about the use of surveillance technology by J. Edgar Hoover's "Thought Police,” Richard Nixon's plumbers, the NSA's eavesdroppers, and the army's political data bankers. But countervailing technologies were also at work. Chief among these was the Xerox machine, which during the 1970s made it easier to copy and leak secret information. The Nixon administration's effort to control the Pentagon Papers, the army's surveillance of civilian politics, and the FBI's programs of dirty tricks against political dissidents were all exposed through the use of Xerox machines. During the 1970s, the army's data banks were destroyed, NSA's watchlists of dissidents were discontinued, the CIA's spying on domestic politics was ended, the FBI's roundup lists were destroyed, the Watergate plumbers were sent to prison, Hoover's "Thought Police" were disbanded, and most police intelligence units were abolished. The defeat of these Orwellian activities, a major victory for political freedom, will not soon be forgotten. However, the defeat of these activities was only a momentary advance in a much longer war against the forces that Orwell feared. The outcome of this war remains in doubt; there have been as many defeats for privacy as there have been victories. Nowhere is this more evident than in the body of law that defines the right of Americans to the privacy of their communications and the control over the government's collection and use of information about their personal lives. Communications Privacy The past three decades have not been kind to the privacy of electronic communications. When Orwell's countdown began, the Supreme Court was unwilling to hold that warrantless electronic searches violated the Fourth Amendment unless the eavesdroppers physically invaded their targets' property. The Court persisted in following the doublethink of Chief Justice William Howard Tatt. who had declared in 1928 that electronic communications were not tangible enough to be seizable, unless, of course, they were seized on a person's property, in which case they were magically transformed and made subject to the Fourth Amendment. During the 1960s, the Supreme Court finally came to realize how absurd it had been to tie the privacy protected by the Fourth Amendment to the technical laws of trespass. In Katz v. United States the Court even declared that the Fourth Amendment protects "persons, not places," thereby establishing a new portable personal right of privacy. What the amendment really protects, the Court seemed to say, are the reasonable expectations of privacy that people should have in certain circumstances. But this new standard was not without its confusions. Insofar as it liberated the Fourth Amendment from heavy reliance on concepts of ownership and control, the standard constituted a positive gain for individual privacy. However, to the extent that it required proof of the subject's actual expectations, it was regressive, leaving the way open for the government to declare its intent to snoop and thereby eliminate all reasonable expectations of privacy. The Supreme Court, now dominated by Nixon appointees, has come to accept this regressive approach. When Orwell's warning was first published, section 605 of the federal Communications Act of 1934 clearly forbade the government to "intercept and divulge the contents of wire communications. Unwilling to accept this restraint or to work to change section 605 by legislation, successive attorneys general simply debased the statute's language. What the law really meant to say, they declared, was that the government could conduct all the nontrespassory wiretaps it desired so long as it did not divulge the contents in court or elsewhere outside the executive branch. In other words, so long as information obtained from eavesdropping was shared only within the government, no harm to privacy would be done. By this sophistry, the "Justice" Department sought to reduce the Fourth Amendment from a principled guarantee of privacy to a technical, largely pointless, rule of criminal procedure. To these Orwellian "realists," the Bill of Rights was not a body of high moral values but an amoral prediction of what some politically shrewd judge might decide in some future case. Embracing what Oliver Wendell Holmes called the "bad man's theory of the law," they followed the tendency of all lawyers to subordinate their morality to that of their clients. Thus the law of privacy was reduced to what the surveillance agencies could not reasonably expect to get away with. In 1968, Congress made another attempt to govern wiretapping and bugging. Title III of the Omnibus Crime Control and Safe Streets Act of that year was based on two assumptions: first, that all wiretaps are searches within the meaning of the Fourth Amendment, as the Supreme Court had ruled in Katz v. United States; and second, that the Fourth Amendment does not flatly prohibit all general searches of places, even though that was what the Framers had sought to accomplish. Searches of all telephonic and household communications are constitutional, Congress assumed, so long as they are governed by a reasonable set of authorizations. Nineteenth-century absolutism about the "sacred privacies of life” was thus replaced with twentieth-century relativism, and the Fourth Amendment reduced to a mere counsel of moderation. Under Title III, criminal investigators are required to obtain a full-fledged judicial warrant before installing a wiretap. After the device is installed, the statute seems to say, investigators are supposed to minimize their intrusion by recording only those messages clearly associated with the purpose of their tap. However, even this requirement has been eviscerated by a 1978 Supreme Court interpretation. If the lawmakers had been serious about minimizing the effects of these general searches, they would have forbidden the investigators to use any information about other criminal activities that they happen to overhear unexpectedly. But the law's draftsmen did not forbid them. Today unsuspected persons who discuss criminal activities on a tapped telephone are as vulnerable to prosecution as the suspect himself. The government can breach their privacy without first establishing probable cause to believe that they are guilty of some criminal activity and that evidence of their crime will be found on the telephone line to be tapped. In 1984, claims of national security justified all breaches of privacy, for Oceania was in a perpetual state of war with other superpowers. In cold war America, claims of national security have had a similar impact. During the drafting of Title III, national security conservatives quarreled vehemently with civil libertarians over whether the president could constitutionally ignore the statute and authorize the installation of warrantless wiretaps to collect national security intelligence. The conservatives said that the president could, because Article II of the Constitution, or the "concomitants of nationality," gave him an inherent power to ignore restrictive legislation and even the Bill of Rights in order to protect whatever he might deem to be the nation's security. Civil libertarians denied that Article II gave him any such power or that the so-called concomitants of nationality belonged to the president. Accordingly, they refused to accept a provision in the bill that would have acknowledged the concept of inherent executive powers or of a national security exception to the Fourth Amendment. After lengthy debate, Congress finally avoided the issue by expressly disclaiming any legislative intent to resolve the constitutional dispute. Johnson administration lawyers agreed to the disclaimer. However, when Richard Nixon assumed the presidency, his attorneys insisted that the provision actually constituted positive recognition by Congress that FBI agents could, as the president's lieutenants, ignore the warrant requirements of the Fourth Amendment and Title III whenever they believed that the communications to be invaded might somehow be related to national security. Not surprisingly, the bureau's definition of "national security" was Orwellian in scope. In 1972, the Supreme Court rejected the Nixon administration's interpretation of the disclaimer. In United States v. U.S. District Court, the justices ruled that there was no inherent power or national security exception to the Fourth Amendment or to Title III for wiretaps directed against domestic political activists who are not agents of a foreign power. In so ruling, the Court separated the Fourth Amendment into its two clauses and suggested that while the reasonableness requirement of the first clause had to govern all electronic searches, the warrant requirement of the second clause might be weakened to facilitate foreign intelligence wiretaps. As in Orwell's Animal Farm, all have equal rights under the law, but some are more equal than others. Two federal courts of appeal subsequently decided that prior judicial warrants for wiretaps directed at alleged foreign agents were not required at all. In the case of H. Rap Brown, a black power advocate, the court even ruled that no prior judicial review of any kind was required by the Fourth Amendment when the purpose was to gather "foreign intelligence." The court declared that the Fourth Amendment's standard of reasonableness could be satisfied in such cases by judicial review at a trial, conveniently ignoring the fact that the purpose of nearly all national security wiretaps is not to collect evidence for a criminal trial but to gather economic and political information and to obtain the means to blackmail people into becoming spies for the United States. The Brown decision thus gave the clandestine services of the United States a constitutional license to wiretap at will within the Fifth Circuit, regardless of the consequences to personal privacy. When the new intelligence committees of the House and Senate undertook to draft the Foreign Intelligence Surveillance Act of 1978, they took notice of these judicial opinions and created a new system of weakened, pro-forma judicial warrants, to be administered by a specially designated national security court. The procedure prescribed by this statute is essentially a travesty of the principle of checks and balances. As a gesture to the probable cause requirement of the Fourth Amendment, the court is directed to decide whether there are grounds to believe that the target of the electronic surveillance is an agent of a foreign power. However, once the court has made this finding, it must accept on faith the executive's certification that the surveillance is rationally and substantially related to the needs of national security. On no account is the court authorized to consider the reasonableness of the proposed search on the basis of the totality of the circumstances - the kind of judgment it presumably would make when assessing an ordinary warrant request. When this statute was enacted, some of its proponents asserted that it would undermine the appeal of broad executive claims to inherent constitutional authority to ignore both the legislation of Congress and the Fourth Amendment in order to protect the nation's security. Perhaps it will, if such a case ever reaches the Court. Meanwhile, Presidents Ford and Carter refused to renounce the Nixon claim, and President Reagan has affirmed it. The National Security Agency has also continued its massive interceptions of international telephonic communications to and from the United States. It has done so without any judicial authorization at all-not even a pseudowarrant like that authorized by the 1978 act. NSA ignores all federal wiretap legislation INVASION OF PRIVACY 137 largely on the theory, which it prudently keeps secret, that legitimate expectations of privacy evaporate as soon as the telephone company decides to bounce conversations off a microwave tower or satellite.' In 1973, according to the Senate Select Committee on Intelligence, chaired by Senator Frank Church, the NSA had discontinued all of its "watch lists" of United States citizens whose international communications NSA agents had been instructed to intercept. However, there is a document that the Justice Department apparently did not share with the Church committee and that the Reagan administration would now like to recall and reclassify that indicates that the committee was misinformed. Watchlists or their equivalent may still exist, not only to spy on the commercial activities of selected corporations but also to investigate suspected drug smugglers, gunrunners, and terrorists. Since each of these activities involves criminal activity and none is directly related to the activities of foreign intelligence, military, or diplomatic personnel, it would appear that the NSA is still engaged in the wholesale violation of Fourth Amendment rights. Thus, despite Orwell's warnings and the exposés of the 1970s, all three branches of the federal government still strive to erode the Fourth Amendment's defenses against electronic spying. The extent of this erosion is most dramatically illustrated by positions taken on the authority of federal agents to conduct burglaries in order to install listening devices for national security purposes. According to the Nixon, Ford, and Reagan administrations, these intrusions may be authorized by the president on his authority alone. The Church committee insisted that a warrant be obtained first but did not object in principle to court-ordered burglaries. Presumably, this means that if one of the government's burglars is surprised and killed by a homeowner, the homeowner would be guilty of murder. Conversely, if the burglar killed the homeowner in the course of a struggle, the killing would not be a crime, becaues the entry had been authorized by a judge. Such is the Orwellian logic of the "Justice" Department and the legislators who are supposed to oversee it. Informational Privacy When Orwell wrote 1984, intruders still seemed to pose the greatest threat to privacy because privacy was still viewed largely in physical terms. Orwell helped change this view. Big Brother was not only an eavesdropper, a Peeping Tom, and a government spy but also a keeper of records, a mind reader, and a brainwasher. The secret to Big Brother's enormous power was not only physical surveillance; his power was also based on informational control. He knew, or led people to think that he knew, as much about their personal lives as they did themselves. As a result, people lacked the capacity or courage to control Big Brother by limiting what he could know about them. Ibid.. PP. 130-42. |