It’s Just One Byte…of Liberty

Earlier last week, respected cybersecurity journalist and policy advisor David Gewirtz wrote on the ZDNet website to defend, even celebrate, the National Security Administration's data-collection efforts.  Gewirtz's basic points are these: (1) Facebook and other companies regularly collect much more data than the NSA; (2) the government is only trapping minute bits of data in very accurate ways; and (3) this is all overblown. Because of this, Gewirtz goes so far as to boast the NSA's effort is an "absolute triumph of big-data management."

Hold up.  It is helpful to remember that activities conducted in private settings are never a proper benchmark for government action. Under this light, comparing how much data Facebook collects from users to NSA's privacy violations is irrelevant. The first proper question to ask is whether voluntary consent exists.

When I pick my Internet Service Provider and related online services, I do so in a free and, one hopes, educated manner. I can elect to be a Facebook addict or an Instagram hipster. If I don't care for their data policies, I can quit using their services. Indeed, even the larger-than-life Facebook has scaled back some of its data sharing due to user protests and concerns. Under this light, comparing how much data Facebook collects from users to NSA's privacy violations is asking how much water is in the Indian Ocean.  Internet democracy seems to work where authentic voluntary consent exists.

I have never been given a copy of the policy practices of the NSA when I log onto the Internet. Nor have I seen data-management restrictions for any branch of the government analyzing Internet data. Under our American system of government, consent of the governed is the foundational principle we invoke when determining the legitimacy of any government action. Where it is missing, the related government actions are invalid, including NSA spying on free citizens.

Gewirtz makes the utilitarian point that the NSA "mistakenly records less than a megabyte a day - less than one MP3 worth of data per day." He then examines industry practices and celebrates the NSA approach because "they appear to be doing a darned good job protecting us without getting all up in your privacy junk." This, again, is rhetorical silliness.

The question is not whether the NSA is recording one megabyte, two gigabytes or more per day. The Constitution does not green light government abuses no matter how insignificant. Instead, our Bill of Rights is concerned about every abuse because each infringement of individual liberty matters. Just one racially charged, inappropriate detainment violates the Fourth Amendment as much as one improper recording of data from one user. The Bill of Rights protects individual, not aggregate, rights.

In today's Internet culture, it is wise not to lose sight of the dramatic importance of the Bill of Rights, even though some commentators may be willing to relinquish them based on utilitarian arguments.