Independence day provided a prime opportunity to consider the precepts of the Declaration of Independence. Among the most vital of these, in my view, is the unequivocal statement that government derives its just powers from the consent of the governed. In a prior post, Algorithmic Privacy versus Personal Privacy, I argued that most Americans would probably consent to some version of the PRISM program. Let me be totally clear in stating that without that consent there is little doubt that the program is abusive, as is the case in nearly every instance of secret programs by the government since information availability is one of the prerequisites for consent, though there are certainly others (which I will save for a future post).
Wikipedia provides a reasonable definition of consent, for my purpose:
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.
Given that the PRISM program operated in secrecy, it’s reasonable to consider ways that we might think the American people might have consented to the program without explicitly stating so.
First and foremost, we implicitly consent by delegating our consent to elected representatives, which I will term delegated consent. In order for this consent to be meaningful, we must either participate in the political process (including elections, citizen lobbying, debates, and the like), or consensually opt out of those processes thereby delegating our consent to those who choose to participate. There are a whole host of additional levies on the delegates or representatives which must be attended to for this to truly be consent, such as honorable intent, dutiful representation of the will of the people, respect for the electoral and judicial process, and the rejection of corrupting influences. Additionally, the electoral process must be fair and absent of corrupting processes like gerrymandering, inaccessibility of polling stations, poll taxes, and so on. Given that the Congressional approval rating stood at a historic low of 10% in June and has consistently approached historic lows for years, we can safely assume that delegated consent is not currently at work in the body of Congress as a whole.
We economically consent to laws and regulations whenever we transact with a business affected by these rules, such as Google, Facebook, or Skype (though obviously only if we’re aware of the law or regulation). Most vegetarians will recognize economic consent as a meaningful form of consent since vegetarianism is often a multiform decision consisting in part of the boycott of meat products. We also geographically consent to laws and policies by remaining within the territory in which they are enforced. Marriage laws provide a timely example of this form of consent (or non-consent). I recently heard an interview with a so-called DOMA refugee – a citizen of the US who moved to Canada to marry and live with his husband. Finally, we might directly consent to certain policies which are implemented from ballot measures or popular referendums.
How might these forms of consent apply, then, to the NSA PRISM program? I would argue that they might apply under a certain set of conditions: 1) the people have delegated their consent to representatives in whom they have faith, and 2) the people have faith in the institutions of government to properly carry out the policy following other constitutional precepts such as the system of checks and balances. There is little doubt that delegated consent is not currently meaningful, but that applies equally to all responsibilities of Congress and must be addressed elsewhere. With respect to checks and balances, as I understand it, the FISA court was originally set up to provide a system of checks and balances under conditions in which speed and secrecy were deemed vital. Law enforcement would be subject to rapid judicial oversight without breaching the need for secrecy. It seems unlikely that checks and balances are working in the FISA court, however, given that FISA judges are appointed exclusively by the Chief Justice and that from 2001 – 2012, the FISA court only rejected 0.047% of surveillance and property search warrants.
Therefore, it’s reasonable to believe that the PRISM program is, at a minimum, beyond the scope of the consent the governed have thus far granted and, therefore, an abuse of power. It would be fallacious, however, to use that fact as an argument that no comparable program should exist under the consent of the governed. The Declaration of Independence can again serve as a guiding document, claiming that it is the right of the people to alter government that acts without the consent of the governed.
The constitution provides for the alteration of the fourth amendment through a variety of mechanisms. I do not believe that it’s interpretation should be limited exclusively to the expectations of privacy existent when it was created for two primary reasons: 1) no document should be considered sacrosanct purely because it has at some time been useful, and 2) it is unlikely that the authors of the fourth amendment could have considered the possibilities engendered in modern computational practices or in the capability of a single individual to wreak havoc on a substantial portion of society with weapons of mass destruction (which, again, might include financial or computer schemes). Rather, it is vital that we think of the constitution as an infinite game with rules constantly subject to reinterpretation to serve changing cultural needs and that we conduct this process of reinterpretation in public debate so that the consent of the governed can be as explicit as possible.
I’ve received a number of thoughtful responses both in agreement and disagreement. I’d like to thank the respondents for participating in this discussion in good faith and request that they continue to do so. As I understand the criticisms my argument has received thus far, they are essentially related to the process and justification rather than the means that I suggest might be employed. Engaging in public debate is the purpose of the publication of these articles. Thoughtful responses, therefore, will always remain welcome.