Now that everyone, left and right, is having a shit fit over news that the NSA has been engaged in a massive monitoring of Internet communications it's time to rethink the line between public and private in the modern world. First, the basics. The Fourth Amendment declares that we are secure in our "persons, houses, papers and effects," from "unreasonable searches and seizures." The government can't invade or examine these except on issuance of a warrant signed by a judge. (For a long time a land-line phone call has been considered to be analogous to a letter, and can't be tapped absent a warrant.) This is our famous and cherished right to privacy. The question at issue is how far this right to privacy extends. What's private and what's public in the current era?
It's clear that I can still do anything I like in the literal privacy of my home and upon literal paper. I can write as many terrorists screeds as I want in my spiral notebook, for example. I can put up posters on my bedroom wall urging the assassination of the president, or any other vile act, with confidence that no one can view these without a sworn warrant. The street outside my house is another matter, however. If I march up and down my street carrying that very same poster urging assassination of the president I am breaking the law, and the same if my poster bears child porn or incitements to criminal acts. That's because the street is a public space and not protected by the Fourth.
The unresolved question is whether the Internet, the Web, the vast flow of information that partakes of the public airwaves is legally analogous to the street or to my bedroom. Well, it sure doesn't feel like my bedroom. Only a fool puts material in an email with any expectation of privacy. We all know this. As soon as you push that button, it might as well be a poster on the street, and it's forever.
But, horrors! The NSA has been cruising down this manifestly public street in its blue-and white patrol car, looking for guys carrying bad posters. They see a lot of posters for lost dogs and bake sales, which they ignore, and every so often they see one that promotes violence and they make a call. So tell me, are you at all interested In a teenager who spends all his time on mujaheddin web sites, and is ordering thousands of rounds of ammo over the web, and downloading info on bomb making from anarchist sites? Do you see a pattern here? If so, how do you propose to find this kid absent universal data mining of the type the NSA has been doing for years? You can't.
Is this subject to abuse? Of course it's subject to abuse. The literal cop on the street commits abuse when he stops looking for actual suspicious activity and lazily braces and frisks every black and Hispanic teenager he sees, but the solution for that is smarter and less racist policing, not taking the damn cops off the street. So we have to be extremely careful that calls get made to the FBI only when actual suspicious activity is found and not, for example, the merely interestingly harmless or the politically active or the sexually creative. We do this with physical cops and we can do it with electronic cops just as well. Will there be mistakes? I guess, duh! But we survive, and no one claims that the mere presence of patrol cars inhibits civil liberty.
Because the Internet is a public street and its rules are the rules of a public street. We had and have presumption of privacy for snail mail and land line communication and they still need warrants to examine those, and the same for one's literal home and papers. But your Facebook and Twitter feed and your emails are posters on the street. There can be no presumption of privacy because they all use media owned by the public and licensed to private enterprise by public bodies, and NSA is perfectly justified in casting its eye over them, just like the cop on the beat is justified in casting his eye over your behavior in public. We need to settle down here, enjoy the delights of the 21st century, and, when you really want privacy, get out the Bic and buy a damn stamp.