Privacy - OpEd

"The right to be left alone -- the most comprehensive of rights, and the right most valued by a free people."

- Justice Louis Brandeis, Olmstead v. U.S. (1928).

So simply stated, so utterly correct! With this succinct description of our rights, Justice Brandeis in a losing cause dissented in the very first federal wiretapping case. The case involved Federal wiretapping to bring to justice a substantial criminal enterprise to distribute alcohol in violation of the Volstead Act. The Supreme Court in this case found the wiretap legal even in the face of an existing state law that would have found the eavesdropping illegal under its law.

Needless to say that is not the law today, but considering our contemporary tendency to discover a new right every day, our citizenry would be amazed to the point of disbelief that it could ever have been found otherwise. Olmstead is worth studying, however, not only for its shock value and its outstanding dissent on the essence of our civil rights, but for it representation of the era in which it was decided.

Chief Justice Roberts, in his recent appearance before a large audience assembled by Charleston’s stellar new law school responded to the question of what he found most challenging in the cases coming to the Court today. His thoughtful response was that the progression of technology really was at the heart of what most challenged the Court in applying our Constitution to the period in which we live. Similarly it can be said of the Olmstead Court that it too was struggling with applying an 18th century document to 20^th Century society transformed by electricity, a transcontinental railroad, automobiles, airplanes, the radio and telephones.

Today the Court is even more challenged by our era of technology transformation and our knowledge based economy. How do you protect individual rights from government intrusion in an era of pinhead size cameras and microphones, fiber optics, wireless technology, machines the size of molecules, earth-and building- reading technologies?

What do you do to protect privacy in an era with technology that makes the walls no more than veils to what occurs within, and of course, what do you do for privacy in our age of digital dependence in which our cell phones and automobiles pinpoint us to a spot on the globe? Virtually all that we do is reduced to instantly searchable data that includes even the keystrokes on our computers and PDAs.

In Olmstead, the Court was dealing with a medium, telephones, that it reasoned could be avoided and thus was not inherently protectable under the fourth amendment. What do you do today when notions of privacy have been constitutionally extended to an extent never before considered? This right of privacy goes beyond the fourth amendment’s protection of government snooping to implicate the vast amount of personal information in the hands not of government but of commercial interests as well.

Government is not the greatest problem. Commercial interests intent on having the masses of data on each of us fractioned so precisely that if I accidentally open an email from a company offering me a cruise vacation, tomorrow I will receive 50 such emails and the next day 100 more is far more threatening as it is not as limited under current readings of our Constitution to stop its invasion.

It is a regrettable truth that just as no good deed goes unpunished, there is no such thing as an unmixed blessing. It is the agony of our age to struggle to fit our thirst for “progress” within our historic desire to be left alone. In a society under assault from both within and without, Chief Justice Roberts has put his finger precisely on the issue that resonates with Americans the most.

We have an implacable thirst for personal liberty and feel like we are losing the essential quality of being American. Pandora in the form of the cornucopia of ever changing, ever developing new generations of technical wonders threatens to make itself the master and us the servant. Our senses are overcome with data, most designed to sell us something, be it ever so simple as an attitude. If we rebel against this manipulation, we are massaged to feel “un-American” “unenlightened” or just downright paleolithic. Ooops, as we know from the Geico advertisements, we better be careful there too.

There is a phenomenon we perform with our pets in which we endow them with our feelings, engage in conversations and feel certain that they exactly mirror our world view. Our intellectual elite are guilty of that on a worldwide scale, and woe to anyone who disagrees.

With our pets it is largely harmless and may be even therapeutic. With the world at large it is downright dangerous. We engage with our enemies as if their minds must work as ours, their desires and their hearts mirror ours. They must want what we want, mustn’t they? And there must be someplace where we can find agreement? Right?...... Wrong!

This assumption is flat out incorrect and leaves us open to heartache and worse, defeat! For some forces in the world there is nothing for us to do but battle to defeat or victory. Even with our fellow citizens it presumes too much and that brings me back to the Chief Justice’s conundrum. How do we protect our liberty in the digital age?

We are juggling the “good” that endows our society with so many of its marvels and blessings against its cost in privacy. We are juggling security of one kind with the fear and reality that unless technology is carefully checked, there is no place to be truly alone.

Our privacy is an illusion. Into this realm comes the Supreme Court, asked in cases before it or in the pipeline to apply The Constitution in a way to carve out our zone of being left alone. The Court and Congress together can make the difference here to preserve the best of our technological sophistication with those unique qualities of our civilization. That we must do so in wartime adds to the stress, but nevertheless, we must count on them to do their best. Pray for them and our Republic that they get it right.

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Robert E. Freer, Jr, President of the Free Enterprise Foundation, is a Visiting Professor and the John S. Grinalds Leader in Residence 2005-2006, at The Citadel. He is a regular contributor to the Mercury and can be reached at Robert.freer@citadel.edu. Have a favorite column from the past? Copies of his earlier columns can be found in the archive at www. FreeEnterprise.tv.

Charleston Mercury November 8, 2006. Page 16.

Political Corruption - OpEd

According to Wikipedia, “In broad terms, political corruption is the misuse by government officials of their governmental powers for illegitimate, usually secret, private enrichment. Misuse of government power for other purposes, like repression of political opponents and general police brutality, is not considered political corruption.” Not that misuse for such other use is commendable; it just travels under another name such as tyranny or dictatorship. To these descriptors we can add the highly evocative “sleaze.”

In time it may be found that former congressman Mark Foley may have violated no Federal or Florida laws with his salacious emails. Whatever is the result of that process, we can be assured that with his life in tatters, he has been and will continue to suffer real punishment. What concerns us is the odor of “sleaze” and the righteous indignation at someone in his position of power carrying on in such a way. It hurts our confidence in government generally. More particularly it hurts Republican government more because the party and its members hold themselves to a higher standard of behavior. Congressman Jefferson can be caught with $90,000 in “cold” cash in his freezer, and there is only a muted cry at this Democratic misdeed.

The fact for all of us to accept is that there is no corner on either morality or dissolute behavior in either party. Our founders knew this and wisely protected us against our weaknesses by dividing power so that personal weaknesses in one branch would not doom us all. Personal corruption, “sleaze”, as opposed to the formal definition above knows no political affiliation. It is highly personal, and its punishment should be personal. We can assume that if you put 535 ambitious, bright people at the center of a honey pot, at least a few of them will be other than paragons of virtue. Over time their weakness will be revealed. How much do we really want to spend on watching our legislators every step? The press does a good job of that already. The occasional occurrence of “sleaze’ is personal and does not necessarily reflect adversely on governmental diligence.

Scandal, whether you are speaking about Bobby Baker from the Johnson Administration or Mark Foley from this Congress, has been with us down through the ages. We need a healthy sense of proportion to keep our eyes on the donut not the hole. Politics and corruption was a frequent target of Will Rogers’s humor. He speaks for the man in the street when he says, “The more you read and observe about this Politics thing, you got to admit that each party is worse than the other. The one that's out always looks the best.”

What should be important to us is how those in charge face up to both corruption and “sleaze”. It remains to be seen as far as the current election year maneuvering how it will be handled by The House and what its effect will be nationally on our midterm election only a few weeks away, but remember Speaker Tip O’Neal’s proscription that “All politics is local.”

If you want to prove that for yourself, ask yourself or your neighbors about your local Congressman or your state’s Senator. How do you or they feel about him or her? Do the national news stories make any real difference in how you will vote? Almost unanimously the answer to that question confounds the pollsters. Despite a lean one direction or the other in national preference polling, Tip is invariably right. It is the local issues and how those issues have been served by your representatives that determine whether he will be returned to office. In a recent poll, 60% of voters expressed an individual preference for their serving representative though favoring control by The Democrats.

What is perhaps more significant and may signal a coming party realignment is that in 2006, 38% percent of voters identify themselves as independent. That is up from 30% not long ago, and I am noticing in my correspondence, a common trend regardless of party affiliation on issues of civil rights, and other issues that directly reflect on our understanding as to what America stands for.

Conservatives as much as liberals are deeply troubled about what winning this war may signify in what it means to Americans to be American. We have traditionally felt superior to the rest of the world because of our standards, and this war has made doubters out of liberals and conservatives alike. Are we like Pogo philosophized a generation ago, “We have met the enemy and it is us.”?

While understanding my friends’ concerns and in no way minimizing the risk, I don’t think so. Again I turn to the great wisdom of Will Rogers and his comment during the very difficult days of the Depression. With his “[t]his country is not where it is today on account of any one man. It is here on account of the real common sense of the Big Normal Majority.”, he makes us realize that while our form of government is designed to protect us, it is we ourselves with our “hard wired” insistence on protection of basic values that is the continuing sentinel on our behavior.

This great land reflects us. We are a great people in part because we care so very much about these issues. We are a great people also because throughout two centuries, regardless of the compromises we have had to make to survive, and no matter our chagrin at our own “lapse” of principle, the “Big Normal Majority” has moved almost as one to restore our individual liberty and national progress once the danger was vanquished.

Today only historians talk much about the substantial damage the great liberator Lincoln did to our liberties to preserve the Union, and much of what was done during WWII to maintain our national security has yet to be fully told. In neither case was it pretty, but the nation does not hold its head in shame for having done what it had to in order to survive.

To survive as a nation, eternal vigilance is required but that is at all levels and in all precincts. The anxiety is a symptom of our continuing humanity. I am glad for it. As for some of the bitterest rhetoric, rather than damn the House leadership, let’s see what unfolds. Rather than assault our President, let’s pray for him and take comfort that he has deliberately put together such an outstanding bipartisan commission to consider all of our options in Iraq and promised to listen with fresh ears to their suggestions.

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Robert E. Freer, Jr, President of the Free Enterprise Foundation, is a Visiting Professor and the John S. Grinalds Leader in Residence 2005-2006, at The Citadel. He is a regular contributor to the Mercury and can be reached at Robert.freer@citadel.edu. Have a favorite column from the past? Copies of his earlier columns can be found in the archive at www. FreeEnterprise.tv.

Charleston Mercury October 25, 2006. Page 16.