This is exactly why I think libertarianism is completely nuts. If it's going to place some absurd sense of an absolute right to privacy so much higher than the extremely important obligation of the government to protect its people, then I want nothing to do with it ... It just seems silly to me to complain that my rights are being violated simply because information the government can already get if there's reason to suspect me of any criminal activity is more readily available in the event that such criminal activity is terrorism-related.
There are a number of circumstances we must consider: the most important question is whether the phone companies gave the information voluntarily or under threat of coercive force. In fact they must have given it voluntarily, since nothing happened to Qwest when they refused, but since Jeremy seems to me to think that the government should have been able to legally force them, we must consider both. The case where the government forces them is the easy case, so let's consider that first.
When the government undertakes a criminal investigation, it certainly violates no one's writes by going around asking questions. However, when someone doesn't voluntarily respond, warrants, subpoenas, etc., are issued. This is an application of coercive force. What justifies it? In US law, the justification is the concept of 'probable cause.' I don't understand law well enough to know exactly what this means, nor am I prepared to give a comprehensive philosophical account of the correctness or incorrectness of the law, but the basic idea seems to me to be clearly correct and in keeping with libertarian principles. The government can take your documents or time or whatever from you if and only if it can show that there is good reason to suppose said documents are relevant to its criminal investigation, and, if you turn out to be innocent (or were never suspected of wrong-doing in the first place) the government (or, better, the actual perpetrator) must compensate you for your loss of utility. There are a number of ways in which the government's spying on phone records involve loss of utility:
Now, back to the real world: the government did NOT apply force in seizing these records; doesn't that mean that it's just like asking questions in an investigation and having them answered? After all, the records do belong to the phone companies, don't they?
As a rule, Verizon will notify you and give you the opportunity to "opt out" when we disclose telephone customer information outside of Verizon. In fact, we generally keep our records of the services you buy and the calls you make private, and will not ordinarily disclose this information to outside parties without your permission. However, we do release customer information without involving you if disclosure is required by law or to protect the safety of customers, employees or property. This is further explained below ...
Examples where disclosure is required by law or to protect the safety of customers, employees or property:
- When you dial 911...
- Verizon must disclose information, as necessary, to comply with court orders or subpoenas. Verizon also will share information to protect its rights or property and to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services.
- We may, where permitted by law, provide information to credit bureaus ...
- Verizon also occasionally uses contractors to do work for the company. These contractors have the same obligations as our regular employees concerning customer information.
Those are all the cases given. Now, there are a couple of loopholes here: (1) Verizon might argue that the clause "or to protect the safety of..." includes terrorism investigations, and that the list of cases given are merely "examples" and not an exhaustive list, (2) Verizon might argue that the information was released "to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services." As to case (1), the terms of the contract seem to be vague enough that they might possibly get Verizon off the hook like this, but it is through sheer vagueness, and not an actual agreement from the user. As to (2), it apppears that this only implies actually breaking the law in the manner in which you use the services, for instance, phreaking and the like. So, I would conclude that, while there is some ambiguity, there is enough here that we can assert (barely) that Verizon represent to its customers that their records will be kept private whenever possible. If this is indeed the case, and these are the circumstances under which users purchase Verizon's product, and the government then convinces Verizon to cooperate in this data mining operation, we can assert that the government and Verizon conspire to perpetrate and act of fraud against Verizon's customers. If, on the other hand, Verizon didn't represent this to their customers, then nothing is wrong here, from a libertarian perspective, as long as the government doesn't apply force in order to maintain a monopoly among phone companies who release data to the government.
This brings up another issue: surprisingly enough, from a libertarian perspective, I believe one must assert that any laws which prohibit the phone companies from doing this (see the list of lawsuits against Verizon at Homeland Stupidity - all the lawsuits seem to allege violations of laws rather than terms of contracts) violates either (a) the phone companies' property rights over the data, or (b) the freedom of contract rights between the customer and the phone company. That is, if the government prohibits the phone company from sharing its data with the government (doesn't that sound kind of weird?), it tells the phone company what it can and can't do with its property, restricting it with regard to actions that vaiolate no one's libertarian rights (that is, if you give someone a piece of information, without entering into an agreement with that person to keep the information secret, their revelation of that information to a third party does not violate any negative right), and if the government requires that the terms of the contract between company and customer include a clause like that, then they violate the freedom of contract rights of both company (or, rather, stock-holders - corporations are legal fictions and have no libertarian rights as such).
The government could, of course, voluntarily restrict itself from asking for or otherwise acquiring this kind of information, but has no obligation to do so. If the government did place such a restriction, it could make a permissible law that no agent of the government could acquire such information and then charge the relevant people in the NSA and at the phone companies with conspiracy to break that law. Things get even more complicated from this point onward, so I'm going to leave off here, but I hope I've given some kind of coherent idea of a tenable libertarian position on why this is such a huge problem, even for those who have nothing to hide.Posted by Kenny at May 15, 2006 6:02 PM
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