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Posted by on Jul 18, 2008 in Politics | 24 comments

The Real FISA Issue

I was skimming through this litany of complaints over the revised FISA legislation in The Indypendent and giving fresh thought to some of the major privacy concerns which occupy our national debate on the subject. We live in an era where advancements in technology give rise to fears that our government can now track our movements through our cell phones and, increasingly, the GPS compatible devices in our automobiles. Our conversations can be monitored, not only through voice communications, but text messaging and e-mail exchanges. Cameras, now found at stoplights, convenience stores and ATMs, follow our every move from the moment we step out our door. Fears have arisen that the government is assembling a national database of DNA samples – taken from the moment we are born – which will eventually allow every skin cell we shed during the day to lead the long arm of John Law straight to our stoop like Hansel and Gretel’s trail of bread crumbs.

The essence of the chief argument against this – and rest assured, I’ve used it myself – is, “if you’re not doing anything wrong you don’t have anything to worry about.” The government, police or “the authorities” in general are looking for The Bad Guys. They aren’t looking for “us.” We are The Good Guys and have nothing to fear.

One common and immediate rebuttal to this is that the real Bad Guys are the ones who will find ways to get around these surveillance efforts. They will use “burner” style disposable phones and find ways to disable GPS devices in vehicles. They will disguise their visage in public, which most of us would never do, and most of them probably don’t use computers anyway. As in the case of gun bans, the Good Guys will give up their guns while the Bad Guys keep theirs. (They’re not terribly interested in obeying local statutes in the first place, you see.) In the end, the government will simply wind up spying on and imposing restrictions upon the Good Guys while the Bad Guys flaunt the law.

The reality, of course, is that not all criminals are high tech masterminds working in league with super villains to crack the security codes at Fort Knox, and the fundamentally honest nature of the Good Guys is neither pervasive nor homogenous. We’re all familiar with the heartstring tugging stories of Mary Kate, the poor but pious lunch counter lady who finds four thousand dollars in a paper bag sitting on the bench at the bus stop. She very much needs the money, but instead turns it in to the police and it winds up being the life savings of some addled retiree. CNN picks up the story and we all feel better about the essential goodness of the human spirit.

In response to this, I turn to Dr. Carol Tavris and her essential book on human behavior, Mistakes Were Made (but not by me!) where she details the Problem of the Benevolent Dolphin. I’m sure you are all familiar with the pervasive stories of the hapless sailor, lost at sea and tossed over the gunnels into the angry ocean without a life vest. Just as all hope seems lost, a dolphin appears who bumps the mariner toward the surface and begins nudging him in the direction of land until he is eventually saved. From this we conclude that dolphins are benevolent in nature and predisposed to lending a helping hand to humans in distress. But, as Dr. Tavris points out, this may be a faulty conclusion.

But wait – are dolphins aware that humans don’t swim as well as they do? Are they actually intending to be helpful? To answer that question, we would need to know how many shipwrecked sailors have been gently nudged further out to sea by dolphins, there to drown and never be heard from again. We don’t know about those cases, because the swimmers don’t live to tell us about their evil dolphin experiences. If we had that information we might conclude that dolphins are neither benevolent nor evil; they are just being playful.

No person who finds the bag full of money and then decides to run home and settle up their overdue mortgage payment is going to dash off to MSNBC to be interviewed about it, so we never hear those stories. There are also one time criminals, drunk, clueless or driven by desperation, who would certainly not qualify for the moniker of arch-villain. Observe the fellow in Florida who recently attempted to hold up a convenience store using a potted palm frond as a weapon. (That story is only made more amazing by the fact that he succeeded.) The point here is that we should enjoy and cherish our privacy but recognize that some people will still do bad things and we have agencies in place to maintain the general peace and welfare.

In the end, the privacy protections we enjoy through the Bill of Rights, Miranda and similar guarantees, were never intended to protect the guilty nor make it more challenging for CSI investigators to capture them in dramatic fashion. These assurances were granted to shield the innocent from false accusations and prosecution, be it through either malfeasance or incompetence on the part of the authorities. We didn’t design this system to ensure you can get off on a technicality if you are guilty. We built it to make sure the right person winds up behind bars. This is the final intent of FISA – not to spy on you as long as you remain one of the Good Guys, but to make sure the Bad Guys don’t show up at your door with a palm frond.

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