From the time the Jews in the Midbar arranged the doors of their tents to insure privacy thus bringing the Shechinah down among them the respect for privacy has been a Jewish value. Nearly a thousand years ago Rabbeinu Gershom issued a cherem prohibiting Jews from reading other people’s letters and other writings without permission. Now that very sort of invasion of privacy has become one of the most talked-about legal questions in theUSin years. The reason for this of course is the revelation that theUSgovernment has been collecting information about just about everyone in this country.
The National Security Agency (NSA) has acknowledged that for years it has routinely collected not only information revealing who has called whom on the telephone but is now scanning almost every e-mail sent in or out of the US. Although it copies all these -emails the NSA retains only those containing key words “just in case” — i.e. for future investigation anti-terrorism efforts or for whatever other purpose the government deems itself trustworthy to make use of them.
This practice raises serious questions under the US Constitution’s Bill of Rights which prohibits various types of intrusion by the government into the lives of individuals. One of these prohibitions is the Fourth Amendment which bars the government from conducting searches and seizures of the personal effects of citizens without a warrant — and both the blanket monitoring and scanning of e-mails and the recording of phone call data are being done without warrants.
Some civil libertarians also believe the practice violates the First Amendment’s free speech clause. This argument is based on Supreme Court opinions protecting anonymous expression and what has been termed the right of free association. If e-mail scanning makes people afraid to discuss their objections to government policy or to seek support from attorneys or civil rights groups this has the effect of chilling their speech. Critics of the NSA say this makes the practice constitutionally suspect.
Others see a problem arising under the Fifth Amendment which prohibits the government from forcing a person to provide evidence against himself in a criminal case. The NSA’s monitoring program violates the Fifth Amendment it is argued because it reveals private information about people’s activities and communications. Under the Fifth Amendment they say the government needs a warrant to obtain such information.
One of the government’s main defenses for these practices is that it is not — usually — reading the contents of e-mails or listening in on phone conversations. Rather the Obama administration asserts it is saving the information and keeping it accessible if future developments merit a closer look on security grounds. This argument is given short shrift by most constitutional law experts because there is little legal basis for it. Indeed some scholars have suggested that the reference in the Fourth Amendment to unlawful searches “and seizures” was meant to prohibit just this sort of practice which apparently was a tactic employed by governments even during the days of quill pens and vellum paper.
The administration has also insisted that its program is lawful because it is monitored by a specially-appointed court. This argument holds little water because American courts do not monitor anything. Rather they adjudicate disputes between adversaries. Here the party whose privacy is being violated seldom has the opportunity even to know of the monitoring much less to be able to challenge it in court.
These issues are unlikely to be resolved other than by resort to the US Supreme Court and lawsuits in this area have indeed been filed. Rabbi Yisrael Salanter is quoted as saying “Not everything one thinks should one say; not everything one says should one write; not everything one writes should one publish.” In a world where everything written can be considered published — at least as far as the NSA is concerned — the advice to think about what we write has never been sounder.
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