A debate is underway between the FBI and Internet carriers like Apple about whether the right to privacy,
guaranteed, we thought, by the Fourth Amendment, should be protected by
encryption that even the carrier cannot read, let alone an intelligence agency. This is a perfect case for opponents of old school Fourth Amendment privacy laws because protected material can be stored on a terrorist's cell phone, a formulation conducive to public acceptance of the government's right to snoop.
In contrast, the First Amendment, supposed to protect us from censorship, is weakened by something different, and surprising.
Regarding the Fourth, which protects the privacy of personal information from "unreasonable search and seizure," we don't want to admit it, but as a result of pressure from the War on Terror and windfalls from evolving technology, the battle for the Fourth Amendment right to privacy is already lost without a shot fired in opposition by America's 81 million gun owners. Though privacy is still protected by a U.S. postage stamp on a sealed, mailed letter, our online correspondence has no privacy protection at all. Ditto for your financial and medical records. The many people in a position to read your "private" email correspondence and files are constrained by an honor system at best. The problem extends to your car. The Los Angeles Times reveals ("Vehicles are like 'wiretaps on wheels,'" 8/7/23) that conversations in new model cars are recorded by hidden microphones and sold to unkown third parties without restraints of any kind (Tesla warns drivers that blocking sale of data may "negatively impact crash protection.") Even privacy proponents are moving away from arcane assertions about the Fourth Amendment, which contains no reference to a world with internet. The situation is something of an embarrassment that
we'll need to figure out at some point, though it's hard to see how we could
endure the commotion of a constitutional process removing the privacy protections
of a bygone age, even if the purpose is to replace them with something more specific and effective. We'll probably just have to live, for now, with this contradiction between
the Constitution and our actual society.
The First Amendment, designed to protect us from censorship, appears largely intact, but for a strange reason: public indifference to information that you'd think someone would want to censor. Consider Dexter
Filkins' findings about covert U.S. funding of the Afghan Taliban during our war against it (The Afghan Bank Heist @ http://www.newyorker.com/magazine/2011/02/14/the-afghan-bank-heist, You may have to cut-and-paste this link). Filkins tells of an investigation of Afghan war funding by the Afghan Threat Finance Cell, with members from the FBI, DEA, Treasury and Pentagon, which "uncovered one of the darker truths of the war: the vast armies of private gunmen paid to protect American supply convoys frequently use American money to bribe Taliban fighters to stand back. These bribes are believed by officials in Kabul and Washington to be one of the main sources of the Taliban's income. The Americans, it turns out, are funding both sides of the war."
After Filkins' piece was
published in 2011 in the New Yorker Magazine, which has over a million readers, there was silence from all quarters. Even veterans groups were unmoved by news that thousands of American
troops were killed or wounded fighting a fake war. Nor have feminist groups appeared to take notice that a regime which, with Iran's, is one of the two most repressive of women in the world, was enabled by "liberal" administrations under Clinton, Obama and Biden. Who needs Big Brother to censor the news when no one cares anyway?
Because of this indifference, I don't anticipate interference with my own free
speech, just as the other estimated 20 million bloggers in the world are left
to spout as they please. Who cares? The reading audience is so
fragmented that nothing like an effective political response to the current flood of uncensored, public information, no matter how concerning, can emerge.
Back to privacy, without a real Fourth Amendment (i.e. one
that has to be obeyed) the Founding Fathers are out of the picture, and we are back to square one. The time may come when people miss their privacy rights. At the moment we haven't noticed they are gone.
