At last, there’s a court verdict in the United States that points out that when it comes to electronic surveillance, like the collection of masses of global Internet data by the U.S. National Security Agency, the end does not justify the means.
Here’s part of a verdict that explains why, written by U.S. Supreme Court Justice Louis Brandeis.
“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding,” the judge wrote.
“Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”
But here’s a surprise: that opinion was written in 1928.
Judge Brandeis was writing in his dissenting argument in Olmstead vs. United States, June 4, 1928.
His opinion, which became famous in the United States, was vindicated when the majority decision in Olmstead vs. United States was overturned in 1967 in a landmark case on the reasonable expectation of privacy, Katz vs. United States.
The concern in Olmstead? Whether or not government agents needed a warrant for the relatively new use in court of intercepted telephone calls — wiretaps.
Wiretapped information had been collected on Ray Olmstead, charged with illegally transporting and selling alcohol during prohibition — the government argued it didn’t need a warrant, primarily because the intercepts weren’t specifically identified in the constitution.
A different view
Brandeis didn’t agree, pointing out that the U.S. constitution had to
be forward-looking, because the drafters of the document couldn’t have known what technology would bring.
“Moreover, ‘in the application of a constitution, our contemplation cannot be only of what has, been but of what may be,’” he wrote.
“The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. ‘That places the liberty of every man in the hands of every petty officer’ was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed ‘subversive of all the comforts of society.’ Can it be that the constitution affords no protection against such invasions of individual security?”
Strangely prescient for a judge who probably could not have conceived just how far science would progress.
Brandeis had one other message for the modern-day administration that stresses there are no concerns with collecting Internet metadata willy-nilly — because, after all, the work is being done with the necessary end of catching terrorists.
“Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
“To declare that, in the administration of the criminal law, the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”
A voice from the past with words for the future.
The only real question is whether anyone in power actually wants to listen.
“Men of zeal, well meaning but without understanding.”
Russell Wangersky is The Telegram’s news editor. He can be reached by email at email@example.com.