Based On NSA Defender's Arguments Against Public Debate, The 4th Amendment Should Be Classified

Overhype

from the sources-and-methods! dept

One of the key points that we keep hearing from defenders of the intelligence community concerning the Snowden leaks, is that all these revelations about what the NSA is spying on is providing important info to “our enemies” who can then use that information to evade the watchful eyes of US intelligence. That’s silly for a variety of reasons, with a big one pointed out by Conor Friedersdorf at The Atlantic. Based on that same logic, you could argue that the Fourth Amendment of the Constitution should be classified as top secret for revealing the same kind of information. Cue the sarcasm:

Notice how much the Fourth Amendment tells our enemies. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” it states, “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.”

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court’s practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.

He makes the basic point that you can more or less apply this kind of test to all of the claims by NSA defenders. He points to regular Techdirt favorite, Stewart Baker, who is still apoplectic about the idea that we’re having a public debate about any of this, because:

“You can’t debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you’re discussing to the very people you’re trying to gather intelligence about,” he said. “Your targets are listening to the debates.”

But, uh, yeah, that’s kind of the point of living in a free and open society. Nearly a decade ago, in a totally different arena, Professor Ed Felten talked about how you could debunk calls for stronger intellectual property protections via the Pizzaright Principle, whereby if the identical argument being made for why we need stronger copyright or patent protections could similarly be made for why someone deserves an exclusive right to sell pizza, then the argument is bogus.

It seems that we could do a similar sort of thing for any discussion that tries to cut off public debate and discussion about what the intelligence community is doing as well. If the same argument could equally apply to why we should not have a public 4th Amendment, it should be default evidence that the argument being pushed is completely bogus. We can call it the “Classified 4th Amendment Test.”

Filed Under: 4th amendment, classified, debate, nsa, openness, public discussion, stewart baker