For some unexplained reason, Gov. Chris Christie has received praise on news channels for his confrontation with Sen. Rand Paul during the opening Republican debate two days ago. Regarding the issue of the NSA’s gathering of widespread phone data, the governor was attempting to justify this post-9/11 practice because he believes it is necessary to prevent terrorist attacks.
Sen. Paul countered that such data collection is contrary to the Fourth Amendment which states that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (1)
Court Cases Regarding Privacy
In their heated exchanged, Gov. Christie relied on an emotional appeal and did not mention the court case which those in favor of such literally unwarranted data searches often cite. In Smith v. Maryland in 1979, the Supreme Court ruled on a case where a phone company monitored the phone calls a robbery suspect made for three days. Its 6-3 decision declared that the pen register installed on his phone was not a “search.” (2)
Since then, the Court has held “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” In contrast to this, good points raised by the dissenting judges in Smith included Justice Potter Stewart’s that phone numbers are an “integral part” of communication and part of the communication’s “content.” Justice Thurgood Marshall wrote “privacy is not a discrete commodity, possessed absolutely or not at all.” (2) The battles continue to this day. (3) It’s important to understand that in 1979 the Court was not anticipating the advances in technology allowing current widespread data collection (“metadata”).
Gov. Christie is Not in Tune With His Constituents
The public continues to desire freedom from invasion of privacy. As recently as last year, it was reported that the 47 million residents of California and New Jersey (ironically, Gov. Christie’s home state!) were said to have an expectation of privacy in the areas of bank records, phone records and even garbage; all of which have been tried in various courts since the Smith v. Maryland decision. (2)
Two Points Which Would Simplify this Debate
The 9/11 attacks on our country have had an ongoing ripple effect on public opinion and legislative actions. Well-intentioned people in authority such as Gov. Christie fervently want to protect us from a repeat of that terrible day. Unfortunately, they end up submitting the rest of us to the dangerous philosophy that “the end justifies the means.” To his credit, Sen. Rand Paul has tirelessly tried to stop this ever-encroaching power of Big Brother.
In summary, we would all benefit from Benjamin Franklin’s quote:
“People willing to trade their freedom for temporary security deserve neither and will lose both.” (4)
2 – “Smith v. Maryland Turns 35, But Its Health Is Declining,” by Hanni Fakhouri, https://www.eff.org/deeplinks/2014/06/smith-v-maryland-turns-35-its-healths-declining, 6/24/2014
3 – Court cases include United States v. Miller (deposit and bank records) and California v. Greenwood (privacy of garbage left on the side of the road for pickup), Ibid.