Snowden’s Christmas Message on Privacy: Does NSA threaten 9th, 14th Amendments, ‘Inviolate Personal

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http://www.juancole.com/2013/12/amendments-inviolate-personality.html

Snowden’s Christmas Message on Privacy: Does NSA threaten 9th, 14th Amendments, ‘Inviolate Personality’?
By Juan Cole | Dec. 26, 2013

Edward Snowden’s Christmas address, carried by the British Channel 4, concentrated on the disappearance of privacy. He said that a child born today might “never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought.” People walk around with a tracking device in their pockets, he noted, and as we now know, the NSA is collecting the metadata of those phones, which includes location information. He said that this disappearance of privacy is important because privacy “is what allows us to determine who we are and who we want to be.”

In focusing on privacy, Snowden is widening the issue merely from the 4th Amendment prohibition on unreasonable government searches of private papers and effects. This amendment was the basis for a recent Supreme Court ruling and a lower court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts construed following someone around 24/7 as a “search” because such intensive monitoring of a person’s movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones inevitably involves tracking individuals just as a GPS device would.

But there are other places in the constitution and in the history of court rulings that prescribe privacy for individuals from government intrusion. In fact, although “privacy” is not mentioned in the US constitution, the Supreme Court found in Connecticut v. Griswold that American citizens had a constitutional right to use birth control and that the state could not arbitrarily come into the bedroom and prohibit it. Some of the justices referred to the 9th Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is, the government can’t just wake up in the morning and decide to constrain people’s private behavior. Not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are protected in general as a free people from government intrusions.

Snowden is not a legal scholar but he has obviously thought deeply about privacy, and it seems to me he is warning that National Security Administration surveillance of millions of innocent Americans is violating their right to privacy and therefore violating the ninth amendment.