Richard Epstein Tells Paranoid Libertarians to Get a Grip
Hopefully Richard Epstein, lionized libertarian, writing with Roger Pilon for the esteemed libertarian think tank Cato Institute, carries enough credibility to make the people freaking out over the raping of our freedom by the NSA at least pause for a moment. Listen to one of Ricochet's own assess why this surveillance isn't such a big deal:
[T]he Patriot Act, has set a delicate balance that enables the executive branch to carry out its basic duty to protect us from another 9/11 while respecting our privacy as much as possible. Obviously, reasonable people can have reasonable differences over how that balance is struck. But on this question, political deliberation has done its job, because everyone on both sides of the aisle is seeking the right constitutional balance.
In 1979, in Smith v. Maryland, the U.S. Supreme Court addressed that balance when it held that using a pen register to track telephone numbers did not count as an invasion of privacy, even in ordinary criminal cases. That’s just what the government is doing here on a grand scale. The metadata it examines in its effort to uncover suspicious patterns enables it to learn the numbers called, the locations of the parties, and the lengths of the calls. The government does not know — as some have charged — whether you’ve called your psychiatrist, lawyer or lover. The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires. Indeed, once that warrant is granted to examine content, the content can be used only for national security issues, not even ordinary police work.
As the president said, the process involves some necessary loss of privacy. But it’s trivial, certainly in comparison to the losses that would have arisen if the government had failed to discern the pattern that let it thwart the 2009 New York subway bombing plot by Colorado airport shuttle driver Najibullah Zazi, an Afghan-American, who was prosecuted and ultimately pleaded guilty.
The critics miss the forest for the trees. Yes, government officials might conceivably misuse some of the trillions of bits of metadata they examine using sophisticated algorithms. But one abuse is no pattern of abuses. And even one abuse is not likely to happen given the safeguards in place. The cumulative weight of the evidence attests to the soundness of the program. The critics would be more credible if they could identify a pattern of government abuses. But after 12 years of continuous practice, they can’t cite even a single case. We should be thankful that here, at least, government has done its job and done it well.