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Five Factors in Balancing Privacy and Protection

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As the dust of the Boston Marathon Bombings begins to settle, there is renewed debate over how to balance American liberty with public safety. Even those of us concerned about the escalating level of public electronic surveillance must be thankful for the video surveillance cameras that captured the suspects and helped crack the case. But how far is too far, and what factors are relevant in constructing our laws and social policies?

In an opinion piece in the New York Daily News, the Hon. Richard A. Posner, a leading federal judge, law professor and prolific author asserted that "neither the word 'privacy' nor even the concept appears anywhere in the Constitution." While he's certainly correct about the word, the Bill of Rights does reflect the concern of James Madison and other framers for safeguarding specific aspects of privacy. For example the Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." What interest of the people could the framers have possibly intended to protect, if not the right to privacy? In fact, the Supreme Court has defined Fourth Amendment infringement to be a violation of one's reasonable expectation of privacy in a specific area or item. But what is "reasonable" and what is "unreasonable"?

In the post-9/11 world, Americans have increasingly accepted the need for the government to use more invasive methods to prevent terrorism or other criminal attacks. For example, in October 2011 the Obama administration quietly granted new powers to the FBI: allowing agents to data-mine personal information about individuals without making reviewable records of their actions; to conduct extensive visual surveillance of suspects with no hard evidence of wrongdoing; to conduct interviews under false pretenses; and to rummage more freely through people's trash. And as drone technology is further refined to make secret snooping even easier, who knows where it will lead?

The litmus test to justify any policy, law or practice that infringes liberty or privacy rights must encompass an analysis of at least five factors. The higher the degree to which each of these factors exists, the greater the extent to which infringement of privacy or freedom will be permissible.

First is the degree to which the intended security interest may directly save lives. The New York City Police Department's aggressive stop-and-frisk street policies are more justifiable if the intent is to retrieve guns or bombs, and far less palatable if their intent is to find low-level marijuana dealers or possessors (and rather than rely on claimed justifications, perhaps the best evidence of the true intent would be to evaluate what has actually been recovered as a result of the frisks conducted).

Second is the extent to which the policy is intended to protect third parties. Protecting innocent bystanders and the general public is always far more compelling than protecting a person from his or her own bad choices. Most of us don't want a Nanny State in which everyone is restricted to only the safest options.

Third is the scope of the population involved which is in need of protection. Some activities should be forbidden for children or even teenagers but permissible for mature adults; the policy should be appropriately minimized in its scope so as not to be overly broad.

Fourth is the extent of the need for severe penalties to meet the societal needs. In general, sanctions should be the least "heavy handed" possible. Criminalization should be the last resort; regulation rather than prohibition is a more effective way to "nudge" behavior, such as by limiting the container size of junk foods rather than banning the garbage itself.

Fifth is the extent to which the policy is based on hard science, not anecdotes. Legislators love to draft bills based on isolated instances and named after victims of tragedies. But anecdotes make for bad laws unless there's strong evidence that the freedom being restricted actually caused the tragedy.

As the societal debate over the balance between civil rights and safety continues, remember that freedom was the hallmark of America's founding. In the words of Ben Franklin, "They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."