Originally published in Tikkun Daily |
As a white, Jewish schlump who grew up in Atlanta and now lives in Pittsburgh, I've never been stopped by police based on the blackness of my skin, never been bent over the hood of a sedan and detained based on my dark curls.
While many of my educated, more-sophisticated-than-me black friends have suffered such indignities, I've never been profiled, despite being a minority.
And so when I claim that the NSA's apparent reach into the private lives of Americans is stop-and-frisk on the national level, I do so understanding a key distinction: while the former is being done invisibly, the latter is being done in broad daylight, often with force and harassment.
That said, the NSA's vacuuming up of phone meta data for all Americans, as well PRISM's infiltration into every major internet company's servers, including Google, Facebook and Microsoft, share an important characteristic with stop-and-frisk: the potential violation of Americans' Fourth Amendment rights, which protect against unlawful searches and seizures.
For those who may have forgotten, here is the text of the Fourth Amendment to the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Police officers have for decades been allowed to stop and detain random citizens who they suspect may be involved in criminal activity. The Supreme Court, in 1968, ruled in Terry v. Ohio that law enforcement may stop and search anyone so long as they have "reasonable suspicion" that something nefarious is underfoot.
The operative word here being reasonable.
However, in stop-and-frisk, "reasonable suspicion" has been stretched beyond recognition into racial profiling. In a pending case before judge Shira Scheindlin, Floyd v. City of New York, there is a strong likelihood that the indiscriminate stop-and-frisk procedures used by the NYPD will be ruled unconstitutional. Why? Simple: the Fourth Amendment protects citizens from being searched unreasonably.
Which brings us to what has been revealed about the NSA's surreptitious collection of every Americans' phone meta-data and, potentially, more more (email and chat logs) via internet servers. Much of the private data that the NSA has been collecting on Americans has been created within the last several years, and there are virtually no legal precedents for whether the collection of such data is lawful or not. (Meaning: for now, it technically is.)
However, the large, constitutional question is going to be this: has the NSA and FBI violated nearly every American's Fourth Amendment rights?
After all, it's been revealed that phone meta-data, for example, can be even more revealing than the content of an actual phone call, as such data can pinpoint a caller's location to the specific floor of the building in which one may be speaking and can be used to monitor one's movement and behavior.
Here's Marc Rotenberg of the Electronic Privacy Information Center:
American laws and American policy view the content of communications as the most private and the most valuable, but that is backwards today...The information associated with communications today is often more significant than the communications itself, and the people who do the data mining know that.The fantasy the NYPD has been living in – that stop-and-frisk is not a violation of the Fourth Amendment – is about to come to an end.
It is a bit of a fantasy to think that the government can seize so much information without implicating the Fourth Amendment interests of American citizens.
The question will be whether or not this national, secret stop-and-frisk infrastructure which has been established by the security establishment in this country will suffer a similar fate, eventually.
Either that, or as American citizens, we will continue to have our private, digital data be stopped, frisked and released (or not) without our knowledge.