Tag: lawyer

Speech, Privacy, and Government Infiltration

Yesterday, I mentioned a recent report from the Justice Department’s Office of the Inspector General on some potentially improper instances of FBI monitoring of domestic anti-war groups. It occurs to me that it also provides a useful data point that’s relevant to last week’s post about the pitfalls of thinking about the proper limits of government information gathering exclusively in terms of “privacy.”

As the report details, an agent in the FBI’s Pittsburgh office sent a confidential source to report on organizing meetings for anti-war marches held by the anarchist Pittsburgh Organizing Group (POG). The agent admitted to OIG that his motive was a general desire to cultivate an informant rather than any particular factually grounded investigative purpose. Unsurprisingly, reports generated by the source contained “no information remotely relevant to actual or potential criminal activity,” and at least one report was “limited to identifying information about the participants in a political discussion together with characterizations of the contents of the speech of the participants.” The agent dutifully recorded that at one such gathering “Meeting and discussion was primarily anti anything supported by the main stream [sic] American.”

Now, in fact, the OIG suggests that the retention in FBI records of personally identifiable information about citizens’ political speech, unrelated to any legitimate investigation into suspected violations of federal law, may well have violated the Privacy Act. But if we wanted to pick semantic nits, we could surely make the argument that this is not really an invasion of “privacy” as traditionally conceived—and certainly not as conceived by our courts. The gatherings don’t appear to have been very large—the source was able to get the names and ages of all present—but they were, in principle, announced on the Web and open to the public.

Fortunately, the top lawyer at the Pittsburgh office appears to have been duly appalled when he discovered what had been done, and made sure the agents in the office got a refresher training on the proper and improper uses of informants. But as a thought experiment, suppose this sort of thing were routine. Suppose that any “public” political meeting, at least for political views regarded as out of the mainstream, stood a good chance of being attended by a clandestine government informant, who would record the names of the participants and what each of them said, to be filed away in a database indefinitely.  Would you think twice before attending? If so, it suggests that the limits on state surveillance of the population appropriate to a free and democratic society are not exhausted by those aimed at protecting “privacy” in the familiar sense.

Marriage, Private and Public

Wouldn’t it be great if we could just get the state out of the marriage business? Perhaps. Marriage is fundamentally private, after all. It’s a matter for families, churches, and couples to decide for themselves.

Yet state recognition of marriage often acts to keep the government out of private life, to ensure family stability, and to give regular, orderly rules for all those times when, despite our best efforts, family and state still collide. Here are just a few of the things that the civil side of marriage does:

  • If you’re happily married and you have children, you don’t have to worry for a moment about child custody law. Your children are yours to raise jointly, whether they are biological or adoptive.
  • If you’re married and you die without a will, your spouse typically gets at least a share of your estate. You don’t have to do anything special for this to happen. It’s automatic, and I think this probably strikes most people as fair.
  • If you’re married, you don’t need to do anything special to be able to make medical decisions for an incapacitated spouse. It’s presumed that you are competent to do this.
  • You can sponsor your foreign spouse for U.S. citizenship.
  • You can sue for wrongful death of a spouse.
  • You can collect a spouse’s Social Security benefits.
  • You can often keep joint personal finances without worrying that your spouse will bankrupt you.

Depending on where you live, some of these protections can be won outside of marriage, if you’re willing to go to a lawyer and spend a few hundred bucks. Others, like the last four, can’t be had without either a marriage or a blood relationship.

State recognition of marriage protects families, often from the state itself. If the state got out of the marriage business, the state would be a lot more in all of our private lives, judging, inspecting, regulating, forbidding, taxing, redistributing, and all the rest. Much of the state part of marriage is really a protection against the state.

All of this is a lead-up to saying congratulations to the same-sex couples who will now be able to marry in Washington, DC. Perhaps even more than other types of marriages, same-sex marriages need these protections. (Some, like sponsoring an immigrant or collecting Social Security, may have to wait for federal law to catch up.)

On the whole, same-sex marriage means that gays’ and lesbians’ private lives can stay private. It gives them a protection against the government, which has too often been used against them. It means that gays and lesbians can be treated the same as any other group of citizens. And it means that their basic right to be left alone is finally being honored.