They aren’t trying to hide it anymore:
A top intelligence official says it is time people in the United States changed their definition of privacy.
Privacy no longer can mean anonymity, says Donald Kerr, a deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguards people’s private communications and financial information.
Kerr’s comments come as Congress is taking a second look at the Foreign Surveillance Intelligence Act.
Lawmakers hastily changed the 1978 law last summer to allow the government to eavesdrop inside the United States without court permission, so long as one end of the conversation was reasonably believed to be located outside the U.S.
Of course, noting that this is antithetical to the concepts that used to be the backbone of conservatism will merely open me to catcalls stating I do not appreciate that this is the most epicest struggle in the history of the world EVAH and that serious people know that sacrifices have to be made to keep us all safe from the threat posed by Obama. Oops- I must have been channeling ‘conservative’ stalwart and real Republican (it is true- ask the folks at the NRO) Mitt Romney- I meant Osama.
Ned R.
Hmm. Anyone want to dig up as much information on Kerr as can be found and be willing to share? It might even make him an advocate of privacy.
Michael D.
In most of the rest of the great democracies, this is already par for the course. I used to love the US precisely because we were different in this respect.
Seems to me that, like you noted, “this is antithetical to the concepts that used to be the backbone of conservatism.” Social cons tell us out of one side of their mouth that American is the greatest nation on earth. Out of the other side, they do everything they can to make it just like the others. And I mean that only insofar as privacy rights are concerned.
capelza
Never mind…had this whole rant written…
This and reading Guiliani’a views on “freedom”…something along the line that freedom is willingly submitting to authority…
Really, it makes me ill.
Wilfred
A rare case where the adjective ‘Orwellian’ would not be incorrect. BTW, best description of Giuliani: “A small man looking for a balcony”.
capelza
Wilfred. I do not think nicknaming him El Duce is out of line either.
craigie
If the gummint said “we want to stop all these people dying in traffic accidents, so we’ll need to monitor all your commmunications” then maybe “conservatives” could see the issue.
Or maybe not.
dbrown
Let me get this right – a small group of third world camel jockeys lead by a bush-like coward/brain dead loser has crippled the most powerful military/scientific/industrial power by a combination of dumb luck, help by American stupidly and corporate greed so that we have completely subverted our way of life, economy and honor?! This is what conservatives think is winning the war on terror? What god damn war?! Against these camel riders who still believe in medieval times? We allow 30 times more Americans to die every year by PREVETABLE medical mistakes year in and year out than these fucking clowns ever killed! Bush/cheney fuck mates and there dick sucking lovers are destroying the greatest country in the world for NO GOD DAMN RESON BUT FUCKING STUPIGITY!!!!!!! Americans are dying in Iraq for these pieces of SHIT!!!?
Ted
Having a largely wingnut family (they’re true dead-enders, most of them), I get viral propaganda emails about Democrats. The latest one highlights that Obama didn’t put his hand over his heart during the national anthem, and makes sure that you know what his middle name is with the phrase “yes, that’s his real name.” You know, the one that among Arabic names is akin to “Johnson” or something it’s so common. But I have yet to see one use the lovely spoken typo that Romney likes to use. I guess we’ll see that more in the coming months.
Ted
Anyway, privacy in this country is dead. Last year, blogger John Aravosis made a great point about cell phone records by easily buying General Wesley Clark’s complete cell phone records of all his calls, on the internet for just $100 because most cell phone companies mysteriously make this information available to third parties who sell it to anyone.
It looked like the issue might gain some traction and the Democrats could really run on it (electronic privacy in general), but like on everything else, they failed.
capelza
Ted, I don’t have a cell phone, for a lot of reasons. In fact my land line is unplugged a lot of the time.
Is that viral e-mail the same one that said Obama was sworn into office on a Koran?
jake
Shorter Kerr: Trust Me.
But what do we hear when some Neo-, Theo- or SoCon is caught with his pants down/diapers up/silk stockings on?
“Waaaaah! It’s nonna yer bees wax!”
My boring diatribe on the subject is here.
I think…yeah, I used it to put TZ to sleep. (Shh!)
demimondian
Rather than pollute the comment section with a long diatribe, I’ve put my thoughts on this here.
Ted
Is that viral e-mail the same one that said Obama was sworn into office on a Koran?
No. I haven’t gotten that one yet. I suspect I don’t get several more that are floating around the rest of family’s email addresses.
Ted, I don’t have a cell phone, for a lot of reasons.
I don’t either, and we’re rare. Most people these days assume everyone has one. I don’t because they drive me insane when they belong to other people, and I don’t want to be that reachable all the time.
To explain further what Aravosis did, he immediately informed Clark, never published any numbers or details of the records other than the last two digits of the numbers called, and Clark went along with it by joining the call for reform of privacy protection laws. It was definitely not done in a careless or malicious way. You know, like the way Malkin would have done it.
ThymeZone
Hmm, can’t agree with that. Don’t you think that the modern privacy murkiness really reached murky murksomeness with Roe V Wade?
When I was in high school, I remember our government teachers talking a lot about things like “unreasonable search and seizure.” Being young and impressionable, it didn’t occur to me then that if they passed a law saying that the authorities could search and seize, then my supposed “privacy” was out the window. That’s because the Constitution doesn’t mention privacy, it’s something we have imagined is protected, even though we haven’t really defined what it is. If privacy rests on interpretation of what “reasonable” means, then ….. well, I invite you watch any of GWB’s press conferences and try to figure out how a government run by such people is going to protect reasonableness. Especially in the face of WarrenTerra and exploding technology.
I don’t see how we get anything like privacy without amending the Constitution to define what it is.
This same post is on the previous thread where we talked about privacy, but this seems like the better place to pick this up. Sorry, still awake :)
demimondian
Oh, for heaven’s sake. I know it’s fun to Bash Bush, folks, but…really, you never had anonymity. You just thought you did.
I bring you [drumroll] The Tale of the Tampon, a sad story of a policewoman, drugs, and the Portland, OR Mayor and Chief of Police. Read it, and disabuse yourselves of your illusions.
Ted
I know it’s fun to Bash Bush, folks, but…really, you never had anonymity.
I certainly don’t blame Bush any more than anyone else. Even the Republicans. This problem has no advocate in either of the major parties that can actually get anything done about it.
demimondian
Um, Ted. Go read the article I linked to. You NEVER had true privacy or anonymity. You only ever had “reasonable privacy in the reasonably private sphere.” The cops have always been able to go through your trash, and they never needed a warrant. Don’t waste my time.
ThymeZone
Demi, we seem to be agreeing. I hope you don’t think less of me for this. It’s something that is, blessedly, rare, and I won’t hold it against you later.
Ted
What the hell are you talking about?? I just completely agreed with you that it’s stupid to blame Bush or anyone else specifically. And I said the problem (of a lack of desirable privacy) has no advocate among the political parties, whether or not it ever existed to begin with.
And I did read the article you linked, beginning to end. How am I wasting your time?
Ted
Demi seems to be arguing from the perspective that we shouldn’t have privacy from police going through our garbage without a warrant or even probable cause, since we’ve never had that privacy. And we should not complain about it because it’s right and it’s always been this way.
Interesting.
Chris Johnson
The point is not ability to maintain privacy, that is a crapshoot anyhow.
The point is parity.
Go ahead and spy on me as long as I and/or my friends have a fighting chance of spying on YOU, and some capacity to do something about it, even if it’s only through bringing the information to the public.
My advantage is that nobody really cares about me. If I got found in two wetsuits with a dildo up my ass, nobody really cares other than to go ‘ew’. On the other hand, if George Bush, if Rudy Guiliani, were found in wetsuits with a dildo up their asses, this would be a VERY big break from their publicity image of fascist cowboy toughguys, possibly a fatal blunder.
It’s fine to put up boundaries about how gleefully the government can data-mine your information, but 9/11 established that even for very serious events, this doesn’t necessarily do any good anyway.
The point to watch is whether private citizens are increasingly forbidden to do such things themselves. Amusingly, this puts Malkin on the side of the angels, since she really is NOT a government operative, just a Quisling.
If things really went sideways, I’d want to be able to know who the goverment agents were, and I’d be even more eager to monitor their discussions.
It’s about parity, people. ‘privacy is impossible’ cuts both ways.
bago
Slightly OT but quite humorous. Know how bush drops hymnal references in his speeches? Obama just dropped a Halo 3 reference into a speech.
Ted
I don’t know about that. When all her work is on behalf of the party that owns the Executive branch and wants to make it as Orwellian as possible, I’d say it might make her a sort of attache of the government. Kind of like party enforcers and watchdogs of past communist China.
Don McArthur
You realize this means Osama Bin Ladin will never be bought to justice. He has become our Goldstein, the perennial threat just offstage, the rationale for abandoning our principles, the altar on which we sacrifice our Constitutional Republic. He’s far too valuable on the loose.
dbrown
demimondian said:”You NEVER had true privacy or anonymity. You only ever had “reasonable privacy in the reasonably private sphere.” The cops have always been able to go through your trash, and they never needed a warrant. Don’t waste my time”
So under bush the insane asshole, they can now break into your home, drag your stupid ass out, put you in prison, torture you until you confess, hid the facts of your arrest, and torture, use your forced confession, refuse you a lawyer, or even access to a judge, nor can you even face or learn of how/why you were arrested AND you are a native born citizen and you NOW have no right to Habeas Corpus because the insane dictator has convinced the sheep of America it is better, and hell, you think that looking in your fucking trash has always been a gross violation of our privacy so why complain about our current change in rights??? What loony bin did you get out of?? A bunch of camel fuckers that got luckily have terrorized Americans into giving up a right we have fought wars and shed huge amounts of blood and gave up the lives of thousands of brave people defending and you think that all this sacrifice was to protect your fucking trash?! Either you are insane, stupid or (I hope) refuse to look at reality. The right to see evidence, face your accuser, and have access to a lawyer and seek redress from a judge isn’t just a nice right along with protecting your trash, it IS what having a democratic legal system is all about.
t. jasper parnel
This
Armitage, Richard appears to 1) apologize for Plame and 2) deny that Islamofasists pose existential threat 3) reject that the war on terror is a good idea.
demimondian
You know, dbrown, you might want to go learn something before you spout. In particular, this line
is pure nonsense.
Now, listen very carefully. The Constitution DOES NOT guarantee “the” right to habeas corpus. Surprise, surprise. The Constitution guarantees that the Congress has a right to specify what the right of habeas corpus means, and guarantees that whatever definition Congress creates must be respected (in general). If the Congress chose to protect your right to step on the cracks of the sidewalk, then, hey, guess what. That’s what would be protected.
Meanwhile, don’t waste my time. You do not have a right to privacy.
Ted
Spoken like a true modern Republican. They don’t believe you should have a right to privacy, whether you ever did or not.
The 9th Amendment is not in their list.
Libby Spencer
Whoa. That Armitage clip is astounding. Thanks for the pointer tjasper.
demimondian
Sorry, puppy. You really need to understand the document that you purport to revere. The ninth amendment has nothing to do with privacy, and everything to do with the power of the states. Sometimes, you know, it doesn’t say what you would like it to say. In that case, you have two choices — accept what it does say, and spend some time understanding why it is that way, or try to get it changed. In some rare cases, people even do both; some people — apparently including you — as surprised to learn that those people are more successful in the “get it changed” step than other people are.
dbrown
demimondian
No, you listen – the right of a trial by a jury, face your accuser is part of the constitution which (these parts) are solely based on the right of habeas corpus – so unless it is explicit, than you have no such right? Congress cannot interpret the constitution as you say – that is the job of the courts – that is in the document, by the way.
If you also want to only take the literal written words and not the real meaning of the document than the right to free speech does not exist because there are countless variations on what is free speech compared to the exact reading. Congress can decide that chickens are hawks … but that does not change the fact that the fundamental rights we have are gone if habeas corpus is allowed to be nullified. What is getting me so angry is that you people miss the critical point as you argue like children while our constitution is trashed. All other rights – to vote, argue, speech, anything means NOTHING if they can take you away and you are never heard of again – that is how Hitler, Stalin and all absolute dictators have work through the years – WAKE UP.
fishbane
I just want to hear this sort of person talk about Federalism again. You know, the sort of thing that was advocated in the, er Federalist Papers. Anonymously.
Damn subversives. King George was right. (pick one, doesn’t seem to matter.)
ThymeZone
Let’s be clear on the Ninth Amendment: It’s about the Constitution, not about ensuring that the people have every imaginable right not enumerated in the Constitution.
Privacy is one of those things that lives in the human imagination, like “right to life” for the unborn, that has no basis in the Constitution at all.
If you want privacy, you need to codify it. Otherwise it belongs to those who will codify it for you.
Ted
And no one said it did. It has to do with the fact that just because there are rights specified in the Constitution and Bill of Rights, any additional rights established by the people (through their mechanisms) should not be considered ‘lesser’ or without as much legal force than those written originally. Read the fucking amendment.
You would have the Bill of Rights be set in stone, never to be added to again from this time forward. That’s fine, just come right out and admit you don’t believe there should be a right to privacy, and especially so since one never existed. Being coy about it is cowardly.
And I’ll continue to use your screen name where needed, and you can go on using your childish “puppy” bullshit.
Ted
And that was my point. Not that privacy is a right now simply because it isn’t spelled out that it’s not, just that ‘privacy’, as defined in some democratically agreed upon way, can be codified and added to the list. A lot of people these days can’t seem to comprehend that it’s actually possible to add new rights if badly needed (admittedly, through a very difficult process).
t. jasper parnel
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
I’ll bit how does this not have something to do with privacy; if the people insist that privacy is a right?
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
If thing is not granted why deny the right to suspend it?
t. jasper parnel
In other words, 9 accepts that I have a panoply of rights that cannot be taken away from me; if the state wants to take away a right they have to act to explicitly ban the right.
Andrew
To help y’all feel better about losing all of your privacy, allow me to present the funniest fucking thing I have seen this year or maybe any year.
dbrown
demimondian
While either you nor most, if not all people there are not insane or stupid since you and they do read and write in the comments section here at balloon juice, I realize that this is getting pointless. If you want to argue words rather than the terrible horror that has become our outlook towards rights just because most people have become sheep, than what is the point? America may or may not recover from the damage these cowards have caused but the point is people would prefer to argue about trivia when our way of life, beliefs in honesty, fairness and our values have been given a death blow by bush/cheney and willing republicans and democrats is the real tragedy.
ThymeZone
No, the Ninth Amendment basically says that the Constitution doesn’t bear on your right to privacy, one way or the other.
In other words, if you think it needs protection, then it’s up to you … through the law … to protect it.
Unfortunately, the law is not dispositive in regards to privacy. It’s kind of a mess.
Randolph Fritz
Silly me; I’ve actually read the Fourth Amendment. “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.”
Sure sounds like a right to privacy to me and an explicit rejection of mass information gathering. People who worry about Roe forget that in the end control over ones own body is the most basic form of security in ones person there is.
t. jasper parnel
From the Declaration:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
This would seem to hold not only an undefined right to liberty but other an equally undefined rights
The Preamble to the Constitution:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
So is it the anti-privacy view that “the blessings of liberty” is not sufficiently broad to encompass and unstated yet nonetheless protected right to privacy for the state?
jake
At the risk of being labeled a contrarian, nope. I think that’s a terrible example of murkiness, maybe worse than Bowers v. Hardwick. If the right to privacy doesn’t cover your own person what could it cover? That would be like saying, “Well, we won’t look in your house, but we will conduct random strip searches if you’re standing on the sidewalk.”
I assume you mean a law that allowed for unreasonable or unjustified search and seizures (no warrant, no reason to conduct the search). But that law would violate your 4th am rights and there’s no way you could argue that the framers of the Constitution didn’t mean to protect you against unreasonable search and seizures. It’s right there in the language of the document:
Now the legislator might cite the WarrenDrugs or the WarrenTerra as a reason that the cops should be able to kick your door down and rummage through your house, but that doesn’t change the meaning or intent of the 4th am. In such a case you don’t even need to think about it, it’s right there. The 4th am. doesn’t say the government can never search your house, there just can’t be blanket rules that allow random searches. It has to show, specifically, why it should be allowed to go into your home without your permission.
OK, I think part of the problem is I’m operating under the quaint notion of separation of powers (ie being a bit unrealistic, maybe), but I don’t expect the Bush Admin. to protect reasonableness, or my rights. If I thought those goons had a right to do so I’d be hiding under the bed.
That’s one of the many fucked up things about this situation. Those darn activist judges have repeatedly said “No, you can’t do that.” and rather than say, OK,my bad. The Admin. sits down and tries to think of a way to usurp the power given to the court. They’re breaking the law and one way they do so is by attempting to redefine what’s lawful (see: We don’t torture), when they don’t have the authority to do so.
I understand why that might seem like a good idea but consider how that would work: Your Congress Critters would have to sit down to hammer out an all encompassing definition of privacy. My head hurts just thinking about it. And what happens when a situation comes along that isn’t covered by the new definition? Change the Constitution again? Yikes. But attempting to do so would go against the intent of the Constitution. They could have sat down and tried to think up every situation that might arise, but they were smart enough to realize they had no idea what was going to happen in the future. So, what they created was a base document with the idea that if something could be encompassed by one (or more) of the rights, it became a right. To paraphrase an old professor, you can’t get the right to shout Fuck! in the streets of Bloomington from the base document, but the SC didn’t have a problem finding that the 1st am could be interpreted to allow you to do so. The problem isn’t the Constitution or the lack of clear definition or even the courts, its the other people who want to pretend the Constitution doesn’t exist or try to make it something it wasn’t meant to be.
ThymeZone
Well no, it’s a right to whatever protection the law creates for you. It does not constrain that law or insist on its creation. It leaves it up to you, the citizenry, to decide what you want and get it codified.
Ted
Correct. The 9th Amendment was basically a way of holding the door open on the Bill of Rights for more to be added later and be considered as solid as the original ones. It’s not about privacy, it’s about the accessibility of adding a ‘Right to Privacy’ (beyond what’s covered in the 4th) or any other right to the list through another amendment. And that’s what politicians who want to run on the privacy issue need to advocate. Not just federal laws.
t. jasper parnel
“No, the Ninth Amendment basically says that the Constitution doesn’t bear on your right to privacy, one way or the other.”
Doesn’t not denying or disparaging mean that the unenumerated rights cannot be violated by act of congress? or am I missing something here.
ThymeZone
Yes, my good friend, that and only that and precisely that is what you get under the Constitution.
Which is why we are in the current pickle. First, the existing law is a muddle, and doesn’t well protect this imagined privacy thing (imagined, because the law doesn’t define it). Second, because when the government’s offices of power are in a tug of war over power, the people lose.
Especially when the people have not seen to it that their “right to privacy,” which exists entirely in their imaginations until codified, is protected.
A republic, if you can keep it. This situation is exactly what Franklin’s turn of phrase was all about.
ThymeZone
No, but don’t take it too hard, it’s a common mistake.
t. jasper parnel
Can you explain how not being denied or disparaged means that the unenumerated rights can be legislated against, which effectively denies them, or at least their enjoyment.
t. jasper parnel
The Wiki article seems argue that the violation of the unenumerated rights rests on a pre-existing enumerated power; where is the power to violate my privacy granted to the state?
ThymeZone
I think if you do some thorough reading on the subject, you’ll find plenty of discussion of that question out there.
Generally speaking, this is true:
In short, the Ninth is about the Constitution much more than it is about the imagined body of rights not spoken to by the Constitution. I don’t think any reasonable interpretation has ever been made that it confers rights not enumerated. It simply clears up an ambiguity about how the Constitution applies when it comes time to make law.
ThymeZone
Heh, no, I’m afraid that’s exactly the opposite of what I take it to mean, and unfortunately, the law tends to see it that way (my way) too.
But, your remedy is through process. If you think you are right, then you should work to effect that interpretation.
Ted
The Constitution’s premise in this regard is basically that anything not specifically protected by it (or by its amendments) can be legislated against through the democratic process, either at the state level, or federal level, whichever applicable. It’s the reason why you don’t have the right to throw trash on the sidewalk, etc, etc. (Unless your state or municipality has no such ban, I guess)
The 9th amendment simply states that any further Constitutional amendments that add more rights will be considered as just as valid and legally solid as those originally written into the Constitution. The founders (or who ever advocated the 9th) knew that future legal minds would try to depress the importance or enforceability of any ones not originally included at the beginning, simply because they were added later.
ThymeZone
Ted, great answer.
t. jasper parnel
I always thought that this was the correct interpretation of both the 9th and 10th.
“The Ninth Amendment was intended to reduce the danger of interpreting federal power reduce the danger of jeopardizing unremunerated rights while the Tenth was designed to alleviate the danger of interpreting federal powers too expansively.”
From
Bruce L. Benson review of The Rights Retained by the People: The History and Meaning of the Ninth Amendment in Southern Economic Journal, Vol. 58, No. 1. (Jul., 1991), pp. 278-279.
t. jasper parnel
s/b too expansively after federal power
jake
Which is exactly why I’d rather take my chances with the courts than the likes of Smilin’ Joe Lieberman.
OK, that’s a bit unfair. I wouldn’t trust the majority of those schmoes on either side of the aisle to get it right because even the parts of the majority who aren’t the Most Loyal Knights of the Royal Order of the Bush are more afraid of the dreaded WeakonTerra label than they are of say, fucking up the U.S. through legislation.
But I don’t see the muddle. I see people running around squeaking “Nineleven changed everything!” I see people who say the squeakers are wrong but then vote with them. I wouldn’t trust them to change their adult-sized diapers, so they can stay the hell away from the Constitution.
t. jasper parnel
Sorry yet again:
The Ninth Amendment was intended to reduce the danger of jeopardizing unremunerated rights while the Tenth was designed to alleviate the danger of interpreting federal powers too expansively.
Ted
A lawyer familiar with the intricacies of Constitutional law would need to step in here, but I’m pretty sure ‘unremunerated’ meant rights not included in the original document, but added later through amendments. Thus, you need an amendment to add a new right, if you want to bar the city/state/federal government from taking it away from you.
t. jasper parnel
Or this:
“As the recent symposium in these pages indicated, the preliminary debate over the meaning of the ninth amendment is essentially over. Despite the diversity of views expressed in the Symposium, all but one contributor agreed that the ninth amendment does protect judicially enforceable unenumerated rights. The real question now must be how to identify those rights.” S. Sherry quoted and cited
Thomas B. McAffee The Original Meaning of the Ninth Amendment Columbia Law Review, Vol. 90, No. 5. (Jun., 1990), pp. 1215-1320, here 1218
ThymeZone
Okay, we might agree that the muddle I refer to (which is the body of rather patchwork and ambiguous law surrounding “privacy,” an as-yet-undefined thing …. doesn’t really bear on the subject theft of liberties by the Potatohead Government.
I think the muddle is real enough, and unfortunately, I think that the Potatoheads have deliberately taken advantage of the confusion and doubt out there, and the obvious wide range of “understanding” of this issue amongs the laity, to wreak havoc on our freedoms.
That’s why I refer to the GOP as a “beast” which is no longer serving the interests of the people.
So if we can agree on that, I can be pleased as punch.
Ted
I’d love to hear from a legal historian about this, but I wouldn’t be surprised if the 9th amendment was merely put in to ensure no one badmouthed (to use a laymen description) the other 9 simply because they were amendments, and not part of the original Constitution, even though they were added right away. And of course to help protect additional amendments…
t. jasper parnel
Sorry for the typo, Ted.
James Wilson argued at the convention that “the reverse of the proposition prevails, and everything which
is not given, is reserved.” ibid
“the ninth amendment served an historical face-saving function for many Federalists: while still claiming that a
bill of rights was not strictly necessary, they were able to agree to the inclusion of the Bill of Rights on the ground that the feared danger was averted by the ninth amendment’s prohibiting an inference that the Constitution’s general reservation of rights was undermined by inclusion
of specific limitations on governmental power. It will be shown that the text of the state proposals that became the ninth amendment reflect the general understanding that its purpose was to prevent the inference of a government of general powers from the provision in a bill of rights for specific limitations on behalf of individual rights.” Ibid
t. jasper parnel
George Washington, who chaired the federal Convention, wrote that “the people evidently retained every thing which they did not in express terms give up.” Quoted and cited in ibid
demimondian
Um, jake? Here’s the problem. If you want privacy, then you need to define it. Do you want the government groveling through information to find out about you? No? Fair enough — then tell me what it can’t do. I’m not averse; I’ll be glad to help.
But don’t tell me “They can’t do that because of TheWryToPryVas’Sea — boogah boogah!”. That’s a magic incantation, just like NighNellLevin or WarrenTerra, and, just like them, it’s a meaningless catch phrase. There *is* no Constitutional right of privacy. _Bowers_ and _Roe_ tried to shoehorn one in, but they don’t do it.
t. jasper parnel
So it looks like the founder’s intended the 9th the 10th to mean what it meant. This
and this
support my view from the left and the right, and they are lawyers too; granted not wikipedia lawyers.
Ted
Maybe. But that’s apparently not how it has worked since the founding of the country. How is your local city government able to ban you from speeding? Or driving? Or opening a liquor store where ever you choose? How is your state able to ban you from murder? Or insurance fraud?
Ok, the last two examples involve injury to another party in some way, but the first two do not, yet can still be controlled. It’s because these things were never spelled out as rights. Anything not defined as a right can be regulated and/or banned by various level governments through the legislature.
Washington’s language may be a little cryptic in this case. I’m pretty sure he was referring to the federal government stepping on a state government’s decisions as to what it will and will not allow its citizens to do, beyond what the federal guaranteed rights are, which a state cannot supercede.
t. jasper parnel
My point here has been that there is a constitution prohibition on the governments decreasing my unenumerated rights, which given the general tenor of the document are pretty broad, no?
This one is pretty good too.
R. Dworkin’s The Concept of Unenumerated Rights Unenumerated Rights: Whether and How Roe Should Be Overruled
The University of Chicago Law Review, Vol. 59, No. 1, The Bill of Rights in the Welfare State: A Bicentennial Symposium. (Winter, 1992), pp. 381-432.
t. jasper parnel
Ted,
I just finished reading the law review essay I cited and no.
It does seem, however, that there has been a general reticence to use the ninth even after griswald because of a general commitment the idea of judicial restraint.
t. jasper parnel
A constitutional lawyer:
Randolph Fritz
Claims that any part of the Constitution (includin the Amendments) only enable laws–yes, I mean you, ThymeZone–are, frankly, a load of bollocks.
Ted
You’re basically claiming that the correct interpretation of the 9th means you have a right to do anything that the constitution doesn’t forbid you from doing. Well, it doesn’t forbid individuals from doing any particular thing.
I guess you’re arguing that the state can’t ban something unless the federal constitution does (or the inverse, a protection from the state doing something to you). Find a lawyer or judge who agrees with that interpretation besides a randroid.
Look, we’re on the same side here. But to get constitutionally protected ‘privacy’ however it’s defined, we need a constitutional amendment if we’re not satisfied with the level of privacy in the 4th amendment. Alternatively, we can get it through passing federal laws, but these can be changed later much more easily.
t. jasper parnel
Hey what ya know there has been a right to privacy since 1890
R. B. McKay The Right of Privacy: Emanations and Intimations
in Michigan Law Review, Vol. 64, No. 2. (Dec., 1965), pp. 259-282.
t. jasper parnel
Weird huh? A Constitution that was originally intended to make it hard for any government to use state power to restrict its citizens rights and, by not defining the rights, made the rights expansive. And, actually, its the articles and whatnot I just read that are making the claim.
t. jasper parnel
Brandis from a dissent:
ibid
Ted
By your own logic, corporations (or business owners of non-corporations) have every right to sell your very private information (say, your medical records) to anyone they choose as they too are citizens, because, hey, the state doesn’t have the power to ban the practice, says the 9th amendment.
t. jasper parnel
Actually, the state has the right to regulate interstate commerce expressly granted it in the constitution; that is why during the Roberts’ hearings there was all the hullabaloo about the earlier desisions.
And, again, not my logic; professors of constitutional law’s reasoning.
For those interested the McKay article on Griswald is really nifty.
t. jasper parnel
I meant commerce clause decisions
t. jasper parnel
Ted,
Look I am not saying that it makes life easier, I am suggesting by the use of evidence from experts on the issue that the 9th complicates any government’s use of state power to place limits on the citizenry. Whether or not this is a good thing, I cannot say. But there was a lot of insistence on a very restricted reading of the 9th that granted any government the right to use state power nearly any old way. This would seem to be in need of revision, no?
Ted
Which has nothing to do with, say, your bank selling your complete transaction records to, say, your employer or anyone else so long as the bank, the purchaser, and you all reside in the same state.
So where in the constitution is this forbidden exactly? And why is the state not allowed to restrict the bank owner’s rights in this way, if your reading of the 9th is correct?
t. jasper parnel
Justice Harlin discussing the liberty granted to the citizens of the US of A:
Quoted and cited in McKay
Perry Como
Corporations were granted personhood through a note above a judicial decision a century ago(Santa Clara County v. Southern Pacific Railroad) and had no precedential value. Corporations are entities granted their existence and their rights by the state.
Us normal folks and our rights are not created at the whims of the state. Or at least shouldn’t be, despite what you might argue otherwise.
t. jasper parnel
Ted,
I thought we were on the same side? If the ninth restricts state inference with individual liberty isn’t that a good thing?
I don’t know about the bank example. Sorry. I thought we were trying to figure out the meaning of the 9th and 10th? Does this mean we are off on another journey of discovery?
Ted
Quite right. But my point is that t.jasper’s argument (that we have a right to anything so long as it’s not banned by ??????) doesn’t make any sense. The 9th meant rights added to the constitution through amendments are every bit as valid as rights conferred in the originally signed document. Nothing more. If it meant more than that, we get into an incredible legal arena where the state is powerless to ban your doctor from selling your last heart test results to your employer or an infinite number of other such scenarios.
A lawyer could definitely better explain how the 9th applies to any rights that may be spelled out in an individual state’s constitution (if any exist), but I don’t know how much further it extends than that.
t. jasper parnel
Ted,
The various quotes and related whatnot above are actually from a lawyers, professors of constitutional law, and supreme court justices. They make clear that your reading of the ninth is in error.
Ted
No. Bottom line, we don’t have a right to privacy right now, as you’re conceiving it. I’m sorry, but the 9th won’t get you there. We need a set of clear federal laws that protect individual privacy (remember, in doing so, your restricting the rights of business owners, not just the government, and they have constitutional rights as well), or, even better, a constitutional amendment.
jake
You see the glass half-full. I see the glass half-empty and there’s cat hairs in it. Repeated pre-Nineleven studies have shown the Joe Average wouldn’t know his basic rights if they ran up his pants leg, and he often thinks they go “too far.” But you could (I don’t agree, but you could) argue that Mr. Average doesn’t have to know squat about the Constitution because he votes for people who all promise to uphold the Constitution. Unless I missed something, no one has ever run for office on a “I promise to take away your rights,” platform. They promise to “Keep you safe.” The confusion and doubt doesn’t come from the law, or any reasonable reading of the law or precedent. It comes from the con-artist alternately kissing babies and screaming “They want 2 Kill Us,” and even Joe Average who didn’t think or got scared, or in some cases had no fucking idea how spineless the person he voted for would turn out to be when s/he got to DC.
Secondly, Even if the legislature had – before Nineleven – sat down and written a definition of privacy that included “Even if terrorists fly planes into the WTC, the Pentagon and try to nail the White House,” the potatoheads would either say “Ah-ah, you didn’t say terrorists using box cutters,” or just ignore the whole thing.
So far as TC is concerned, we already have an entire system that doesn’t allow law enforcement officials spy on citizens unless they can convince a judge that they really truly need to for a specific reason and Bush &c decided, “Nah, we don’t like that,” and when Congress found out he was hauled away in chains and … oops, no he wasn’t. I think Leahy wrote a letter. So, I simply do not see what good a crafted-by-people-with-dry-pants definition of privacy would do in that situation any more than the laws against murder stop someone determined to kill.
Be pleased then, enjoy the punch.
t. jasper parnel
From a Professor Redlich
Quoted and cited in McKay.
Ted
Well, then they should be applying it to privacy situations we’re all complaining about in recent times. If I’m an idiot and the 9th means the police can’t just go through my garbage without a warrant or even probable cause, I’m all for that. But, with examples like that and all sorts of other privacy violations, that just doesn’t appear to be the legal status quo now does it?
t. jasper parnel
So when, for example, the SupremeCourt held that we had a right of privacy and used that exact term (see above)in Griswald, they lied?
Ted
That’s exactly what I described earlier. They meant any rights spelled out after the originally written ones. Not ones that we just feel are rights, the “fundamental personal rights” first have to be spelled out in an amendment to the constitution. That hasn’t happened yet for the kind of privacy we’re talking about here.
t. jasper parnel
Let me ask you this, does the existence of individuals who violate the law prove that the law does not exist?
I would argue that they don’t. I would then argue that government’s that use state power to violate my fundamental but unenumerated rights fall afoul of the constitution and that the branch of government charged with oversight and impeachment has fallen down on the job by doing neither.
But that’s me.
Ted
You’re arguing from the perspective that “privacy” is whatever we want it to be. It has to be more specific than that. Since the SCOTUS found in Griswald that a person has a right to birth control, they obviously found a right to that in their opinion, which is excellent. But that same ruling, or definition of “privacy” may not apply in different types of cases involving different types of privacy.
Bottom line, that being the case, we need something in federal law, or better, an amendment, that far more clearly spells out what rights to privacy we should have. The fact that we are even having this argument speaks to this need.
t. jasper parnel
Where does it say that in the constitution? Where does it say that to protect the rights granted to me prior to the state coming into existence (endowed by our creator)have to be enumerated for me to possess them?
t. jasper parnel
If you spell out the right it ceases to cover new and changed circumstance. The points that Brandis and Harlan make above is that the rights need not be spelled out. They are by their nature and the intention of the founders meant to be both plastic and broad. Which is a good thing. The bad thing is when the other co-equal branches fail to fulfill their institutional function of check and balance on one another.
As I understand the founders they were a bright bunch they sought to create both an institutional framework that would restrain each branch (A.O. Lovejoy in his Reflections on Human Nature has great essay on this) and they sought to craft a document that limit the state’s power and increased individual liberty.
Clearly, however, the proper functioning of each section hinges on the folks in charge and right now the folks in charge are not, I would argue, living up to the Founders’ expectation.
But again, that’s just me.
Ted
Ok, now we’re off the reservation. I know that may be in the Declaration, but in fact the concept of ‘rights’ is something civilization has produced as a means to come to an agreement on what everyone is allowed, and not allowed, to do. If you want to argue that the right to what you define as “privacy” (which is probably the same as mine, ie far more private than we have now) pre-existed the Constitution by virtue of being “endowed by our creator”, that’s a whole different kind of debate. Because I doubt there is some sort of right spelled out in the Bible or another holy book that speaks to the right to not have your garbage rummaged through by the Centurions.
Ted
I give up. I guess your basic complaint is really about the judiciary not doing its job and enforcing rights you have ably shown to have been interpreted by eminent legal minds. Fine! I’m right with you on that. But if your complaint is that the courts are not enforcing those opinions on a wider scale, I don’t know what can be done about that other than spelling out privacy rights in more specificity.
t. jasper parnel
Here we disagree. Your certainty about the origins of rights, I would argue, matches your certainty about the meaning of the 9th and 10th. I would argue that the rights I possess are my whether or no there is a state and that the states purpose (in creating the conditions for the pursuit of happiness and the continued possession of my natural liberty) is to protect those rights. I do not have to go hat in hand to the, a, or any state ever ten years and seek to redefine my rights; rather the state must come to me hat in hand and ask if I will let them restrict them. Which, as somebody pointed out, many would be happy to do.
t. jasper parnel
Actually, on one level my complaint is with those who insist that the 9th and 10th mean something other than what they clearly mean; my secondary complaint is, as you point out, that currently far too many in the state and government are unwilling to follow the clear rules because we are at “war.”
Perry Como
Whoa, back up. The reason there was an argument against the inclusion of the Bill of Rights was because the founders were afraid people would use your argument. You first need to understand what the Constitution is. It’s a document that outlines the rights granted to the Federal government.
In the case of the Bill of Rights, there are specific, enumerated rights that the Federal government may not infringe on. That doesn’t mean that if the first amendment didn’t exist, we would have no right to the freedom of speech. This is an all too common misinterpretation of the Bill of Rights.
Look at it this way. Do I have a right to sit in this chair that I’m sitting in right now? It’s not granted to me by the Constitution[0], so, according to your logic, I would either need a law or an amendment to grant myself the right to sit in my chair. Ass backwards, no? Instead, if the Federal government wanted to take away my right to sit in my chair, they would have to show where their right to deny my chair sitting is granted to them in the Constitution. If the Federal government could not legislate my chair sitting, they could enact the Federal Chair Sitting Amendment and amend the Constitution. See Prohibition. Where was my fundamental right to have beer? Yet an amendment had to be passed to legally prohibit alcohol…
The fact that we the people have allowed the government to greatly broaden their authority is our own fault.
[0] – The government does not grant rights to the people. Rights are inherent to the people, not the government. The people grant rights to the government. That’s a fundamental underpinning of Enlightenment political philosophy.
t. jasper parnel
What Perry Como said; btw I just love your version of Catch a Falling Star.
Ted
Fine. Whatever. But only a state (read: government) can protect those rights. In order to know what rights to protect, it needs to be instructed. That’s what the Constitution and laws are for. If some asshole judge thinks it’s perfectly legal for the cops to snoop on your garbage without a warrant, simply because he/she reads the 4th amendment differently than you would like or other judges have read it, too bad. To fix situations like this, you sometimes have to get specific, so that when the asshole judge does this, it’s so completely in violation of your spelled out right to privacy that it’s overturned on the first appeal.
Ted
Wrong. That isn’t at all what I said. I argued, and I stand by it that, in our system, you don’t have a right to judicial government intervention on your behalf unless it is spelled out for you in the constitution, amendments to it, or federal or state laws. That applies whether you’re wanting protective intervention, or compensatory intervention. It has nothing to do with personal chair-sitting behavior or other such nonsense, since there is no need for any government intervention to rectify some sort of injustice to another citizen of any sort (which of course means I think all drug laws are unacceptable, along with any restrictions on abortion). Keeping the police (executive) from going through your garbage requires intervention (judiciary).
I can’t simplify this much more: if you don’t want the police to be able to snoop in your garbage, and all other privacy issues currently coming to light, only the judiciary can do that for you. If it won’t interpret the 4th or anything else in such a way as to produce the rights you say you should have, you have to force the judiciary to with more specific legislation and/or constitutional wording.
Perry Como
Sorry, wrong again. If you are looking at social contract theory, the lack of a government is called the state of nature (anarchy). It is possible to protect your rights in a state of nature by the use of force. Now, depending on whether you go by Hobbes, or Locke, or Rousseau, you may or may not believe you have natural rights while in the state of nature. I tend to tend to like the dictum:
“Man is born free, but everywhere he is in chains.”
Governments are created by men to better protect their rights. Of course, the creation of governments is a double edged sword. While governments can be better at protecting rights, they can also be better at abridging them.
t. jasper parnel
Ted,
If a government wants to violate any natural rights and the state refuses to intervene how will spelling things out protect me? Consider the Japanese internment during WWII. ARe you seriously arguing that there had to be constitutional amendment that said: the state cannot round people up and arrest without due process? Oh wait, it does say that.
t. jasper parnel
I love Rousseau: Happy Slaves Embrace your Chains; the arts and science less powerful and more despotic spread garlands of flowers over the iron chains with which men are burdened.
ThymeZone
Better in some ways, but not in all ways. It’s not a zero sum situation. You may have to give up some things you think are rights in order to live in a society governed by the imperfect laws of men.
If you speak out loud on a streetcorner, you should not have an expectation of privacy. If you do the same thing while holding a cell phone to your lips, you cannot expect that the law is going to necessarily grant you privacy for that speech. If you want that privacy, you may have to work for, through the processes provided to you, and ultimately via the law.
You won’t get it by making maudlin speeches on a blog.
Ted
Jesus. Yes, you’re right. That’s exactly what I meant.
Anyway, please wake up to the fact that government is comprised of humans, not computers. Yes, injustices can occur when the judiciary doesn’t do its job and stop the executive from abusing people’s rights. And it can and will sometimes do this no matter how well legally spelled out they are. This happens more often than not in a poltically hysterical environment, kinda like we have now. This is due, unfortunately, to human nature. What do you propose to do about it exactly? The best we have is our three branch government, where one branch’s job is to interpret rights and laws we legislate. But the only way to improve upon the legal, ethical, and moral character of those judges to ensure they don’t make bad rulings is to elect better executives.
t. jasper parnel
Whose being maudlin?
t. jasper parnel
Yes exactly.
bago
Or put a stricter legal sysem in place with encoded grammar. I can’t compile anything I want on my computer. I have to adhere to a certain set of logical principles. If a law had to be subclassed from the citizen object and you tried to override the protected detention procedure, your law would no compile, and would not be eligible for debate.
Ted
bago,
Awesome!
But what happens when the judicial branch encounters an unhandled exception and crashes?
ThymeZone
I urge all to read at least the introduction to this book, the first part of which is available as an excerpt on Amazon.
If you scan the “Customers who bought this book also bought” list that accompanies this title’s main page on Amazon, you will be directed to other worthwhile books on this subject.
Don’t assume that you know what your privacy rights are, or what that means. You might find out that your real “privacy” is so totally compromised by modernity that your idea of it is just a romantic relic.
Also, before anyone starts making BJ-style speeches about how they were born on Privacy Day (where is JWW when you need him?) …… I’m a strong advocate of privacy. I just happen to believe that current law is weak protection, and that the assaults on privacy are getting more aggressive every day … most of them are things you are totally unaware of. So while you stew about FISA, a huge chunk of your real privacy is being grabbed somewhere else, and probably perfectly legally.
Perry Como
Bush v. Gore.
Perry Como
Choicepoint ftl.
demimondian
I find that particular passage horrifyingly self referential.
That’s the canonical example of a collaborative filtering system. I’ll gladly grant that it’s a useful one; hell, just last night, Amazon recommended a cool new book of Donald Rubin’s older publications on sampling to me. However, from a privacy viewpoint, it’s the commercial equivalent of the panopticon.
Do you know how the system works? It works because there is a single thread attached to EACH buyer that has ever bought a book, or a toy, or anything through Amazon. Associated with each such record is also the set of log records which show every page you ever viewed while logged in. Did you go look at _The Anarchist’s Cookbook_? Maybe spend a few minutes too long looking at that beautiful illuminated Koran poster?
Yeah, well, citizen, we have a record.
ThymeZone
Yes, good point. I have been buying from Amazon since 1995, one can just imagine all the information they have about me.
Perry Como
Hide the wet suits.
ThymeZone
For a really chilling experience, go to Barnes and Noble’s website and read the Chapter One excerpt from “The Future of Reputation” by Daniel Solove.
It calls into question the whole concept of blogging, among other things, WRT privacy and exposure in the age of the internet.
The Dog Poop Girl story. A must read.
Xanthippas
What a fucking joke. Anonymity (in other words, not giving the government that information) is the ONLY way to make sure that it’s properly safeguarded. As governments prove time, and time, and time again, you cannot trust them not to use what information they have in an inappropriate or illegal fashion…ESPECIALLY during times of national security crisis.
Anyway, sorry if someone has already said this here; there’s a lot of comments to wade through.
Bruce Moomaw
Actually, David Brin pointed out in an entire book a few years ago that — thanks to the March Of Technology — privacy really IS dead, and so we must now aim instead for spreading the lack of privacy around evenly. That is, we must make sure we have as much power to spy on governmental and business bigwigs as they do to spy on us.
CDB
“The year 2008 was a general date by which time everyone will realize the world they thought they were living in was over. “
Jill
Don’t forget the old, “if you have nothing to hide..” excuse for our privacy invasions.
The Other Steve
I’ll bet nobody thought to check out her countertops.
Bill Arnold
Kerr’s statement : “Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information”, is completely disingenuous, unless he’s suggesting that congress should seriously strengthen privacy laws in the U.S., and is also agreeing that the executive branch should obey said laws.
IMO the real issue for most people is the rapidly increasing ease with which interested parties (big government, local government, corporations, and even individuals) can construct a detailed dossier on almost any citizen. (The exceptions being the small number of people who are truly obsessed about privacy and who act competently on their obsession.)
BIRDZILLA
We dont have any privacy becuase big brother keep a eye on us 24/7
Punchy
I don’t know what you’re talking about. But I do know that in 1953, a farmer in Lincoln Nebraska once grew 89 bushels of wheat on an acre of……
libarbarian
Small price to pay to avoid being dressed in a burka and ass-raped by terrorists :).
Pb
CDB,
Heh; nice John Titor quote. Now do you think we’ll have the Olympics in 2008? :)
rawshark
Yeah we do and it has nothing to do with the constitution. Everybody on this planet is granted basic human rights from birth. The constitution guarantees those rights for US citizens, it doesn’t grant them. One of those rights is the right to privacy. It doesn’t have to be explicitly mentioned in the constitution for it to exist. That’s a right wing trick. The government does not have any implied power but the people do have implied rights. The balance is tipped in the people’s favor.
cynn
You wish.
CDB
Pb,
nope.
mds
Whoa, back up. The reason there was an argument against the inclusion of the Bill of Rights was because the founders were afraid people would use your argument.
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].”
–Madison’s introduction of the Bill of Rights, 8 June 1789
Then again, Madison in the same speech made it clear that the Executive was obviously weaker than the supreme Legislative Branch; he based this in part on his blithe assumption that the impeachment power would be readily wielded. This illustrates the danger of ascribing godlike foresight to the Founders or their deliberately terse and vague Constitution. I think this might be some of Ted’s point: the breakdown between the ideal and the implementation. If there were explicit invocation of a right to privacy in the Constitution buttressing the Fourth, Fifth, and Ninth Amendments, the judiciary might feel more compelled to enforce it. With the exception of Bork and his fellow travelers.