The essence of the chief argument against this – and rest assured, I’ve used it myself – is, “if you’re not doing anything wrong you don’t have anything to worry about.” The government, police or “the authorities” in general are looking for The Bad Guys. They aren’t looking for “us.” We are The Good Guys and have nothing to fear.
The problem with that argument is this--who's to say what is "wrong?" Is protesting the government "wrong" this week? Because we just got wind that the Governor of Maryland was using his State Police to spy on anti-war protesters. Not "terrorists." American citizens opposed to the war in Iraq. The ability of the Federal government to get out a pair of movable goalposts and change what they define as being "wrong" is what this argument is all about. The moment we gave up our rights in favor of being protected because we believe that the government is only interested in going after some loose affiliation of "bad guys" is the moment when we handed the government a blank check to decide who it can silence. Whistleblowers, protesters, activists, people who don't commit domestic or international terrorism--see where this leads to?
One common and immediate rebuttal to this is that the real Bad Guys are the ones who will find ways to get around these surveillance efforts. They will use “burner” style disposable phones and find ways to disable GPS devices in vehicles. They will disguise their visage in public, which most of us would never do, and most of them probably don’t use computers anyway. As in the case of gun bans, the Good Guys will give up their guns while the Bad Guys keep theirs. (They’re not terribly interested in obeying local statutes in the first place, you see.) In the end, the government will simply wind up spying on and imposing restrictions upon the Good Guys while the Bad Guys flaunt the law.
Already solved that problem--it's called data mining, and it allows US intelligence agencies to sift vast amounts of meta-data to catch exactly those tactics. It's effective, it protects privacy rights because the "hit" generated from a positive match leads into the oversight process if the person that the information is matched to is a US person. The FISA court kicks in and protects the rights of the US person being surveilled, and we should always have some body, some authority, providing oversight.
Disguising their visage? You mean, rubber mask makeup and paste-on moles and shit? The kind with fake hair sticking out of them? Yes, your average "Jihadi" probably did attend drama school and probably aced stage makeup and design.
The gun argument is another fallacy--what does gun control have to do with protecting the privacy rights of Americans? Gun control is a public policy issue for the jurisdiction that you live in--what works in Montana might not work in downtown Chicago for a policy. Yes, the bad guys will always have guns. No one is willing to do what it takes to ensure they are prevented from getting guns and no one is prepared to lock people up in vast numbers for twenty or thirty years at a stretch.
In the end, the privacy protections we enjoy through the Bill of Rights, Miranda and similar guarantees, were never intended to protect the guilty nor make it more challenging for CSI investigators to capture them in dramatic fashion. These assurances were granted to shield the innocent from false accusations and prosecution, be it through either malfeasance or incompetence on the part of the authorities. We didn’t design this system to ensure you can get off on a technicality if you are guilty. We built it to make sure the right person winds up behind bars. This is the final intent of FISA – not to spy on you as long as you remain one of the Good Guys, but to make sure the Bad Guys don’t show up at your door with a palm frond.
Okay, that will leave your head spinning. Last time I checked, "CSI" was a fucking TV show. And that's a fundamental misunderstanding of the rule of law. Our system will sometimes let the guilty go--and that's because the guilty and the innocent have to be afforded the right to a vigorous defense. It's not perfect, but it beats every other system out there. You know, like the one where the government decides what is and what is not "wrong" based on their own whim.
If you're willing to give up your rights to be a little safe, you'll give up all your rights to be completely safe. The problem with that childish thinking is, with all of your rights gone, you have guaranteed yourself a peril that is much worse than anything a terrorist could do to you.
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