In wake of Boston tragedy, right to privacy at risk

Shane Krauser Director, American Academy for Constitutional Education
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Two weeks after the tragic bombings in Boston, our elected officials are offering the American people a stark choice: liberty or security. Arguing for more security cameras in public spaces, New York City Mayor Michael Bloomberg has declared that our dangerous times call for a reinterpretation of the Constitution itself. Privacy — and presumably any other rights that could someday be construed as “dangerous” — must take a back seat to security. What Bloomberg proposes would be devastating to America. If we trade our liberty for security, the very idea of America will disappear.

Within hours of the Boston bombings, Michael Toscano, president of the Association for Unmanned Vehicle Systems International, was arguing that unmanned drones could have been useful to first responders. Others, like former New York City Mayor Rudy Giuliani, who spoke on “CBS This Morning” after the attacks, are calling for increased use of security cameras in public areas.

The Fourth Amendment presumptively requires law enforcement officials to obtain a warrant in order to seize private information. However, the government has convinced the American people that because instruments like drones and cameras operate in the public sphere, they do not violate a person’s right of privacy. Not so fast! James Madison said, “A standing military force, with an overgrown Executive will not long be safe companions to liberty.” Many of the framers noted their objections to a standing army or a police state, and for good reason. A free society doesn’t tolerate such an imposition.

The Air Force deploys drones over U.S. airspace to identify survivors of natural disasters, observe actions in and around military bases, and monitor the environment. What happens when these drones accidentally record information in the public sphere? According to the Air Force Instruction Manual for Oversight of Intelligence Activities, the government has 90 days to decide if the information is relevant to government interests. In other words, the government tells us it is not interested in domestic spying, but if it happens to spy on us and uncover information that it deems relevant, it can potentially use that information.

What would George Washington have done if England had passed the Drone Act of 1770, permitting the British government to place drones over the colonies to ensure they were complying with the Navigation Act and the Townsend Act? I’m sure we would have been awe-struck by the colonists’ response to such a proposal. They wouldn’t have tolerated it for a single moment.

What about cameras on every street corner? Even though people stroll about in public, isn’t there a certain sense of anonymity that protects our sense that we’re not being watched? Most Americans would probably not consent to audio recording devices being placed along our streets to listen to our conversations, yet we are not crying out against something that is just as intrusive: video cameras.

Our elected officials are capitalizing on tragedy after tragedy and, in the process, running roughshod over the oaths they took to uphold and defend the Constitution. Where are the people in government who are opposed to this? There aren’t many of them. Why? Because it’s easier to win elections saying you stopped a future tragedy by infringing on people’s liberties than it is to win elections admitting a tragedy happened while protecting those liberties.

If individuals and private businesses wish to place video cameras and audio recorders on their property, that’s their decision. However, if we allow the government to do so in public areas, we will be facilitating the continuing onslaught against our freedom of movement, our right to be left alone, and the expectation that government will make preserving those liberties a high priority.

May Bostonians know that America stands with them in the midst of tragedy. May government stand with liberty in the face of continued attacks on our Constitution and our right to privacy.

Shane Krauser is a partner with the law firm of Davis Miles McGuire Gardner, the chief instructor of K-Force Vanguard, and the director of the American Academy for Constitutional Education. Follow him on Twitter: @ShaneKrauser