Jun 08 2010

Expectation of Privacy Dying a Slow Death and Our Rights Will Go With It

Social media; YouTube; “reality” television and digital imagery and video have all made for one of the most public and open societies in history.  When starlets want to boost their Google search trends, they just need to release a sex tape. A sex tape! (See, e.g., Kim Kardashian, Pamela Anderson, Kendra Wilkinson). Now I hate to sound like an old fuddy-duddy prude but for any prior generation a sex tape would have been the death-knell to a career not a career boost. But before you hand me a glass of prune juice and tell me to go order the 5PM dinner special, this actually has legal implications. And last week  the Supreme Court issued a decision that eroded individuals rights even further. See, “Supremes Decide that Remaining Silent is Not Choosing to Remain Silent” on this site.

You see, this whole form of  government that we cherish – a Constitutional Democracy- is based on two relatively straightforward general principles:  “Separation of Powers into Three Branches of Government” and “The Right to Privacy.”  The first one is more direct and clear than the second and spelled out in the body of the Constitution.  The second one, however, kind of fluctuates with people’s opinion and the current morals of the time.

Generation Next or whatever label we have placed on current 18-25 year olds seems to care less and less about what is private in their lives. But its not just them, its less important to some Baby Boomers now as well; they have bought into the culture. The young’uns lack of concern about privacy comes from the culture saying it is entertaining to expose every little minutiae of your life, to record it via blog, cell phone camera or Iphone video.  Now older folks are willing to give up the right to privacy and other valuable Constitutional concepts because 9-11 scared the crap out of us. That fear got the Patriot Act passed under Bush II’s administration.  Many of us think its OK that police can ask illegal aliens for ID for no valid reason other that they “look illegal” because “Hey we got blown up, we need to know who is in this country!”  In defense of Arizona’ s recent illegal immigrant law – which every poll shows is supported by about 60% of the adult US population – it is not uncommon to hear “If you aren’t doing anything wrong, what are you afraid of?”  or “Only criminals have to fear the police” or “Just show them your ID and its over, what’s the big deal?”

The big deal is very simple: We have the right to be left alone.

Every one with common sense knows that when a police officer comes upon you and starts asking you questions, it is not a voluntary Q &A session. You get nervous, you feel intimidated, you begin to wonder if you’re going to make it through the session without any trouble. But most of the populace seems to have forgotten that we are not supposed to be inquired of without a reason in the first place.  We are supposed to be left alone, even if we are just standing on street corner with no ID minding our own business. Instead we have forsaken this valuable right (indeed one of the founding premises of our country) or worse, given its interpretation over to the police.

In 1948,  the Supreme Court reaffirmed this right in a case called McDonald v. United States, written by Justice William O. Douglas for a 6-3 court.  Here’s what Justice Douglas said sixty two years ago in explanation of why the Founding Fathers accepted the Fourth Amendment to the Constitution:

The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted.

Can you imagine what would happen on Talking Head TV today if the Supreme Court had the nerve to say “The Police Cannot be Trusted!” Instead, nearly every chance they get they take more rights away from the individual and entrust them to the State.  Last week, they gave police tremendous leeway in continuing interrogations in the face of silence from a defendant

I don’t want to sound like Chicken Little but we are quickly discounting and giving away rights and privileges that were central to the founding of this country. For some reason this seems to be the  only “intent of the framers” that the current Court majority seem to be willing to ignore.  I don’t know how we teach the importance of privacy in this era of overexposure but it is vital that we somehow instill in our children that this value is central to the definition of America.

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