Established 1978
Political Punditry

Giving Up Privacy For Security?

by Brad Hertz

Well before 9/11 and the current and ongoing debate between the roles of freedom and security in our society, 350 years ago philosopher Thomas Hobbes wrestled with these same issues. Hobbes’s classic 1651 work, Leviathan, discussed the “social contract”—the notion that individuals have consented to give up some freedoms and live under the authority of a government, so their remaining rights can be protected. To Hobbes, on one side of the continuum was complete freedom—a pre-government, “every man for himself” state of nature.  On the other side was complete security—where an authoritarian state would maintain total order over its subjects.

political_punditryIn 1689, John Locke wrote that each person had a natural-born right to defend his life, health, liberty, and possessions, a concept that later took root in our American Declaration of Independence with the pronouncement that all of us have inalienable rights, among them “life, liberty, and the pursuit of happiness.” In 1755, Benjamin Franklin leaned toward the freedom side of the debate, saying that those who sacrifice liberty for security deserve neither.   And in 1762, Jean-Jacques Rousseau also wrote on this topic in his book, The Social Contract.

Hundreds of years later, we still wrestle with striking the right balance between freedom and security. What would these philosophers say about the CIA, the NSA, and the TSA?   About surveillance drones, wiretaps, and red-light cameras? What would they think of Edward Snowden? While French novelist Jean-Baptiste Alphonse Karr said in 1849 that “the more things change, the more they stay the same,” in 1964 Bob Dylan sang, “The times they are a’changin.”  Could they both be right?

One “sign of the times” is reflected by the fact that the CIA is now on Twitter. The first CIA “tweet,” fittingly enough, read, “We can neither confirm nor deny that this is our first tweet.”   Who knew that the CIA had a sense of humor?   In all seriousness, however, since 9/11, we must continually ask ourselves whether we are striking the right balance between freedom and security.

Most would agree that for military purposes and in foreign lands, clandestine anti-terrorism operations are a necessity.   But what about here at home?   Domestically, law-enforcement air surveillance and aerial photography have been undertaken in California cities, sometimes without the knowledge or consent of the local jurisdiction. If this helps with crime-fighting, does that make it okay, or have certain rights of privacy and freedom been improperly worn away in our never-ending and understandable desire to be safe?

One of the latest controversies has been that license plates are now being automatically photographed via cameras mounted on police cars and telephone poles, and the information—including dates, times, and locations—is being entered into databases for law enforcement purposes.   Private surveillance firms are getting in on the action and selling their data to law enforcement, to automobile repossession specialists (“repo-men”), and for other purposes. San Mateo State Senator Jerry Hill introduced legislation that would have required certain safeguards regarding the use of license plate information, but the proposal did not obtain legislative approval.

Additionally, our State Supreme Court recently approved the use of evidence obtained by a red-light camera to find a driver guilty of running a red light, even though the camera’s accuracy and reliability cannot be established. Because the computer controlling the camera automatically generated a photographic image, there is no “statement” made by a person that can be objected to on the grounds of “hearsay.”

Lest we forget the sentient computer, HAL, in 2001: A Space Odyssey, care must be taken not to cede too much authority over our lives to inanimate objects such as computers and cameras, no matter how impressive their artificial intelligence might be. And our love-hate relationship with government and the extent of its role in our lives must continue, in order to ensure the right balance between freedom and security.

Perhaps this caution in the movie, Footloose, said it best: “Careful what you do, someone’s on to you. Careful what you say, ‘cause you’re on display, every night and every day. Somebody’s hiding in the great unknown, and every time you think that you’re alone, somebody’s eyes are watching . . . .”

Whether those eyes are watching us, or they are watching out for us, is something to carefully monitor so that we can maintain the right levels of liberty and safety in an increasingly complicated world.



Brad Hertz is an attorney and partner at The Sutton Law Firm, which specializes in political and election law in the Bay Area and throughout the state.

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