Laura Rozen is asking all the right questions in response to this NYT article on the passport controversy. First, NYT:
State Department officials have blamed managers in the passport office, below the level of political appointees, who did not inform their superiors about the breaches. Privacy lawyers said Friday that the department risked being taken to court over the failure to inform the candidates.
"Immediately on finding out that there was a breach, the victim should have been notified," said Steven M. Dettelbach, a former federal prosecutor who is now a partner in the Washington office of Baker Hostetler L.L.P. "It's a basic question of victims' rights. When a crime happens, the victim needs to know what happened."
Take it away Laura:
Hmm. Basic question of victims' rights. So, presumably, all those tens of thousands of Americans who are suspected of nothing who have had their private communications details spied on by the government with no warrants, all of those thousands the FBI director Mueller has been hauled up to Capitol Hill to testify about the FBI mistakenly targeting with stray exigent letters and blanket requests to banks, telecom companies and libraries for their records, all of them, then, deserve to be immediately notified by the government that they were the victims of a breach - and if not, have a good case to sue, according to the attorney's case laid out above?Seriously, what am I missing? Isn't there some bizarre sort of cognitive dissonance going on in seeing the reactions to the two cases? How much more intrusive is it to have federal law enforcement and intelligence scouring ordinary people's phone records, emails, bank records than a State Department contractor sneak peaking into presidential candidates' passport files, with the sort of information available in any credit check, and which is prompting a rush of Congressional investigations?
Why do ordinary people have no recourse, no remedy, no way to demand accountability for the violation of their privacy, no recourse even to demand that they be notified the government has surveilled their communications and bank records, when the presidential candidates, who have volunteered after all for an extraordinary degree of public scrutiny to become the leader of the free world, get recourse, apologies, Congressional investigations and law suits?
The answer most members of congress would give, I suspect, is that this particular episode doesn't involve terrorism. With all of the programs Laura mentioned, the goal is to catch the bad guys. In this case, there was no goal whatsoever, outside of at best satisfying some private curiosity or at worst aiding someone's campaign.
But let's be honest - when it comes to privacy rights, that's really beside the point, because the question is much more fundamental than that. Do we live in a society where individuals have fundamental rights than cannot be encroached upon by the state, or do we live in a society where individuals do not have such rights?
Answering that question shouldn't be terribly difficult. In fact, one need look no further than to the text of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Our rights exist prior to the formation of government, and government exists only to protect these rights. Providing security is of course one of the primary responsibilities of the state, but it is security as a means to another end. And that end, of course, is the protection of our rights. Nothing is more fundamental to our system of government than this.
To repeat: If you create the capabilities, they will be used. If you store the data, it will be accessed. If you grant the power, it will be misused. We knew this in 1776. We knew this in 1789. We knew this on Sept 10, 2001. Why don't we know it now?
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