It’s to be expected that privacy will suffer a bear market after a terrorist attack or attempt. I’ve seen worse, of course, but was concerned this week to read a piece by Richard Epstein on the Hoover Institution web site that I think sounds needless anti-privacy notes. Professor Epstein is not only an important public intellectual, but a Cato adjunct scholar of which we’re proud, and a friendly professional colleague (to whose defense I’ll leap when he’s wronged).
The issue is what policies governments might adopt toward the end of terrorism prevention. Professor Epstein finds the statement of Massachusetts state senator Robert Hedlund (R-Weymouth) to be a bridge too far. Hedlund says:
It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable…
You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.
Professor Epstein calls that “dead wrong,” saying, “the last thing needed in these difficult circumstances is a squeamishness about aggressive government action.” Given the importance of preventing terrorism, claims of right against increased surveillance and racial or other profiling should be “stoutly resisted,” he says.
I agree with Professor Epstein that flat claims about a “right to privacy” shouldn’t limit surveillance. “Concern” with racial or ethnic profiling is not a sound basis for desisting from the practice. But I don’t take Hedlund’s statement to be a product of squeamishness, and I think it is in the main correct.
Where I think Professor Epstein goes wrong insofar as he wants law enforcement to have its way is in setting aside “technical difficulties” and “means-ends” questions as peripheral. For me, the Fourth Amendment’s bar on unreasonable searches and seizures demands coordination between means and ends in light of the technological situation (both in terms of doing harm and discovering it). It is not a given that government action is reasonable, and no amount of priority given to a threat makes an incoherent response reasonable and constitutional.