Recently, I spent some time listening to the oral arguments at the Supreme Court of the United States (SCOTUS, of course!) from the 1960s. Specifically, I was listening to the Miranda v. Arizona case from 1965. You know the one: as a result of that decision, we’ve got Miranda warnings from officers of the government to alert us to our right refrain from self-incriminating statements. It was interesting for the historical parallels it raised, considering recent arguments from the U.S. government with regard to the need for dragnet-like listening tools to collect data about citizens’ web and phone traffic patterns. Let me explain, and I’ll draw this conclusion: the same reasoning applies in both cases, especially in light of the defenses proffered for the government’s behavior in each situation.
In Miranda, the government and its agents argued, essentially, that we’d catch a lot fewer criminals if we were to warn people that they don’t have to speak against themselves. And, if the point of the law is to protect society from criminals, we ought to use every advantage we can get in our efforts to remove them from society. The argument sounds like this, rhetorically: “Whom is the government trying to protect? The criminals or the law-abiding citizens of this country? If we’re trying to protect the law abiders, we ought not to warn criminals that they don’t have to speak against themselves – we get a tremendous amount of convictions based on exactly this: extracted confessions. If we start warning them in advance that they have a right to an attorney and a right to remain silent while being questioned, they’ll take us up on the offer. As a result, the country will be a more dangerous place.”
At this point, the argument sounded very familiar to me.
Usually, when government representatives are defending web listening, phone data collection (whether particularized or aggregated), they make the case this way, rhetorically: “If we refrain from collecting this data, we’ll be unable to catch people before they do very bad things. If we collect the data, we’ll be able to stop crimes before they happen. Who are we supposed to protect – the [potential] terrorists or the American people? Sure, it seems risky to the Fourth Amendment, but it helps us to be more effective.”
Mm hmm. I see.
The similarity in argument is striking. What should also be striking is both arguments’ implicit dismissal of constitutional protections.
The court in 1965 essentially decided that protecting the rights of many is worth the convictions that commitment costs us. Our right to be free from coercion when it comes to self-incrimination is more important than closer-to-absolute protection from criminal action. In fact, an argument that not reading people their rights is effective is not an argument that we should not alert citizens to their rights.
Similarly, an argument that invasive data collection methods are effective is not an argument that the agents of the government should continue collecting data en masse.
If we want to be the kind of country that protects individuals’ rights to privacy and freedoms more generally, we have to be willing to let some criminals go. That is, if we refrain from reading people their Miranda warnings, or if we refrain from trawl netting the internet, we’ll protect people’s rights at the near-certain risk to some people’s actual lives.
If this argument isn’t convincing to you, perhaps you should be asking yourself: Is it the government against whom we should be defending ourselves, or is it criminals? If it’s the latter, especially as the destructive powers of criminals rise, perhaps our commitment to our principles is something we ought to weigh against its costs. Perhaps you’re less committed to the principles underwritten by our constitution than you realize. If you are committed, though, you are committed also to reject the government’s arguments, both in Miranda and in the case of data collection.
You can listen to the Miranda v. Arizona case here or download it and listen on your phone on your drive to work – it’s my favorite way to pass my time in traffic.