Our View: Fourth Amendment is no relic

June 11, 2013 

Search and seizure

Is the NSA Uncle Sam on watch or Big Brother unblinking?

Alaskans might be surprised at the results of a Washington Post poll that found most Americans approve of the National Security Agency's collection of our phone and digital communications.

That's because Alaskans have a long tradition of belief in the right to privacy, and may be less likely than other Americans to see that right eroded. More than a decade ago our Legislature was unanimous in its call on the federal government to back off on elements of the Patriot Act -- and that at a time when there was talk of concepts like "Total Information Awareness" and a global war on terror that would include further invasions of privacy and restrictions on freedom.

That has never played well here, even in the days after 9-11. Hence Sen. Lisa Murkowski's response to the revelations of the vast reach on the NSA's monitoring of our communications -- no blank check for government under the guise of keeping us safe -- and Sen. Mark Begich's demand to end the secrecy of court rulings on surveillance requests.

The Fourth Amendment to the Constitution, part of the Bill of Rights, says that we all should be secure from unreasonable search and seizure of our persons, property and papers. Logic argues that those rights extend to digital communications. We're a long way from quill and parchment, but the principles remain. The check on government always has been to require a warrant, and the warrant requires probable cause. That's reason striking the balance between liberty and security.

Clearly, there is no probable cause that would allow government access to the communications of everyone in the country. So the healthy wariness of Alaskans, echoed by Sens. Murkowski and Begich, is wise. Once a government gains power, government is loathe to let it go. That's not conspiracy, that's human nature.

At the same time, most Alaskans have no problem with intelligence and security forces tapping communications of anyone suspected of plotting violence against us. And we understand why this can't all be public information, and why those charged with defending us may need a wide net. But our Bill of Rights and more than 200 years of tradition demand safeguards.

The NSA's reach is vast, and potential for Big Brother intrusion obvious. The government's response for years, not just under President Obama, has been essentially to say, "Trust us."

In the end, it does come down to trust. The Constitution won't enforce itself. Our freedom and security depend on the people entrusted with it to abide by that Constitution. But our freedom and security also depend on our awareness of what authority those people have and whether they're being held accountable. We don't know that now. Ronald Reagan's old maxim applies: Trust, but verify.

Some say the digital age and its data mining -- coupled with 9-11 and the specter of terrorism -- have made privacy a quaint relic of days gone by. Maybe so. But in the United States, a republic built on the foundation of individual rights, this should be a subject of clear-eyed debate. One way or another, we'll have that debate now.

The Fourth Amendment isn't a relic. And Uncle Sam has to be accountable, lest he stray into Big Brotherhood.

BOTTOM LINE: NSA's long reach deserves debate -- with an eye to maintaining both our rights and our security.

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