Tuesday, February 7, 2006

Certain Expectations

One of the administration’s defenders of the warrantless searches posits that it’s okay for the government to spy on Americans because, well, it’s “reasonable” in terms of the Fourth Amendment.

[E]very time I board an airplane, my luggage is searched. This is done without a warrant, and the government lacks probable cause to believe that I am carrying a weapon. Nevertheless, searching my luggage is constitutional because it satisfies the standard of the Fourth Amendment: it is reasonable. Likewise, the NSA’s data mining program, as described by the Post, is reasonable because 1) catching terrorists operating inside the U.S. is absolutely vital to our security, and 2) the program is likely to turn up significant leads to such terrorists.

That may be a logical argument, but it’s also comparing apples to pumpkins. When you pick up the telephone, you have an expectation that your conversation will not be tapped because, as anyone who has read the fine print in the phone directory will tell you, it’s against federal law to listen in or record a phone conversation without the permission of all parties or a legal warrant.

The same cannot be said for modes of transportation. When you buy a ticket for an airline flight, you voluntarily agree to waive certain rights in order to board that flight, including a search of your person and your belongings; read the fine print on your ticket. If you do not agree to be searched, you aren’t allowed to board. The airline has no obligation to convey you and your luggage to your destination, and you do have a choice in transportation; if you don’t want to be searched, you can find another way to get to your destination. It also obligates the airline and the government to protect you from terrorism, and that is the expectation you have when you waive those rights. You can’t commit an act of terrorism over the phone — unless you count your mother calling while you’re having sex — and packing a bunch of people and their luggage into a steel tube and shooting them through the sky is not the same as calling Aunt Martha or Cousin Mustafah. In either case, having an expectation of legal protection by — and from — the government is part of the deal.