America is involved in various “wars” : war on crime, war on drugs, war on terrorism.
As a result, there are now more federal and state laws that define crimes, as well as laws which increase governmental powers - with the intention of making our government more efficient, effective, and successful in controlling crime, drugs, and terrorism. These laws increase the powers of the justice department, the CIA, the FBI, the DEA, the border control police, the military, the national security agency, the administrative and executive agencies, the president and congress, and all of the analogous state and local governmental bodies, including, the police, state attornys and courts. (Is this a police state?)
All of these increased powers will have an effect on our daily lives. I will focus in on the increased investigative powers of the federal and state police, attorneys, and courts. Some of the increased investigative powers of the police will by definition (though not necessarily by practice) reduce our privacy. For example, increased wire tap powers will by definition increase governmental surveillance of people’s telephone and electronic communications. Whether the govt will in fact listen in on more people’s conversations is something we can’t know automatically.
Question: Is there any justification in the so-called balance between crime investigation and personal privacy? And if there is legitimacy to the existance of such a balance, to what extent should privacy reduce the effectiveness of crime investigations?
I have been asking myself this question for a long time. I know lots of the constitutional arguments and requirements (most specifically: 4th amendment probable cause, 5th amendment self-incrimination/miranda ruling, right to lawyer, and 14th/5th general due process clauses). Given the bill of rights, the balance is presumably a good thing. The point of contention is on where to draw the line.
It occurred to me that there is an analogy here: Medical research. If I wanted to see if a certain medication is effective, it seems that it could be a whole lot easier to use people as my testing subjects. Of course this would probably lead to many unfortunate deaths and/or disfigurations - but if I want to find a cure to cancer, say, I don’t think a few deaths should stand in the way… Just like, If I want to find terrorists, it would be a whole lot easier to investigate, without any privacy obstacles, all people who have any association to the people and organisations who are currently known to be engaged in terrorism. But, of course, the interdiction against using guilt-by-association as a reasonable cause forintrusive investigative techniques is one of the basic tenets of our privacy. Thus, what we lose in effectiveness we gain in privacy.
Is this analogy helpful in considering whether the balance has any legitimacy? And does it equally help us to know where to draw the line between police powers and our privacy? And most importantly, does it help us have the courage to keep the line there where it belongs?
Medical research requires informed consent: “do you, the patient, the guinea pig, agree to an experimental drug or procedure being tested on you?”
The person is free to refuse.
Terrorists never seek the agreement of their potential targets.
In general, all is a matter of balance. Agreeing to pay a portion of one’s income (a certainty) to fund one’s retirment (a probability) is a matter of balance. So is catching a plane (“do I really want to risk dying in order to attend a wedding?”).
I’ll leave the pros and cons of the American Constitution to others.
That’s not my point. Here’s how I think my analogy is correct.
Do you agree that people cannot legally consent to a test that is not legally acceptable? A hypothetical. In order to study cancer, I can concieve of a test in which I inject a healthy person with a cancer cell, and I study its progress and spread until the death of the willing patient. I continue to do this on people with all kinds of blood types, or other biologically interesting structures. I do this over the course of years, and I publish the results, and within a few years after the published results, we find a cure for cancer. What’s wrong with this picture? Is it that in order to make my science more effective I have done something tragically wrong?
I don’t most national laws would permit this kind of testing. We do not allow just any scientist to do what they wish even if in the interest of science it’s the best thing to do!. Sometimes the law makes choices against the interest of science.
This is what I mean by my analogy. Sometimes the law makes choices against the interests of criminal investigation, and god forbid, against the interests of seeking out terrorists. This is the kind of balance I am wondering whether we should accept.
Now with medical research, one can define the balance as between murder by lethal injection of a cancer cell versus curing the cause of millions of death. With terrorism investigations, it’s a bit more difficult, but generally, there is the privacy rights/individual freedoms of targeted groups of people (some terrorists but the majority non-terrorists) versus the potential of leaving terrorists free to kill 3000 or more people in one act of terrorism…
In another forum, Phaedrus quoted Ben Franklin, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” We could easily have quoted Patrick Henry who said, “Give me liberty or give me death.” To which the terrorist could respond, “OK, thanks to your liberty, which you have given to me, I will give you your death…”
noel, What if consent was not required?! What if scientists could do whatever they wanted as long as they could prove that it was scientifically sound?! It seems, now that you have raised the point, that consent is really a serious obstacle to efficient science! (Just like privacy concerns are in the way of efficient police work.)
Actually, you’re helping me answer one of my questions, whether the analogy works. Here’s a breakdown:
Doctors == Police
Cancer == Terrorism
Cancer deaths == Deadly terrorist attacks
Testing to cure cancer == Police investigations to weed out terrorists
Cure == No more terrorists
Patient == People
Respect for human life == Respect for privacy
Needing consent == Needing a probable cause warrant and needing to knock before entering a person’s home
Some tests are simply illegal (no consent allowed) == Some investigative techniques are simply illegal (warrant would never be issued.)
So, if there is sensibility to the consent requirement on the left hand, is there any sensibility on the right side? If there is sensibility, then is there more often a lack of courage by law enforcement agencies and law and order politicians because the notion of privacy is somehow more vague and liberal a concept.
What if, for example, in a serious nationwide epidemic, the govt secretly allows unsafe scientific testing on a small unknown group of undesirables, like prisoners, or worse, poor people … hmmm… sounds like the problem with law enforcement in general…