Should security trump privacy rights? That is the key question that frames this aspect of the privacy debate.

Many argue yes.  The only way in which a democratic State can outwit those intent on destroying our value system is for each and everyone of us to accept that the State, in pursuit of terrorists, should be given free access to our privacy.

Terrorists are adept at blending, chameleon-like, into the civilian population leaving the security services the unenviable task of figuring out who the terrorists are, where they are hiding and how to arrest them to prevent further atrocities.

In doing their job the security services, their reasoning goes, should be given whatever tools they need to protect the civilian population from further terrorist attack. Since most of us are law abiding citizens we have nothing to hide, nor to fear, from a State that has been granted unbridled and unfettered access to its citizen’s privacy. If the law hinders the security services from doing their job, then quite frankly, “the law is an ass”.

In joining in this debate  EU Perspectives would like to argue the reverse and propose that whilst most of us have nothing to hide from the NSA – we do have a lot to fear from a State that enters our privacy in secret and without boundaries.

A bomb that explodes is a visible, loud and immediate threat. Suspending the Rule of Law  less visible, loud and immediate – but it remains a threat and something that the civilian population needs to guard against.

Many European countries, unlike the United States of America, have suffered from despotic regimes who have invaded the civilian populations privacy at will.

Both Stalin and Hitler – and just about any despot past (and present) – has justified the suspension of a right to privacy on “State Security”. Europeans have not forgotten this. That is why Edward Snowden’s revelations have touched a particularly raw nerve.

For many in Europe, an invasion of a person’s privacy is right up there alongside the late night knock on the door, secret trials and the crushing of political dissent as an indicator of a totalitarian regime.

Those who drafted privacy rights into the post-war German constitution would, almost certainly,  have remembered the effects on civil society of a State that has unbridled and unfettered access to a person’s private life. It wasn’t pleasant.

The President of the United States, unlike Stalin and Hitler, does not rule absolutely but governs through the Rule of Law – a principle that the United States of America has adhered to since its founding. The Declaration of Independence was inspired, in no small part, by Thomas Fuller’s seventeenth century writings, “Be ye never so high, the law is above you.”

Applying this principle, countries that uphold the Rule of Law including the United States of America require procedures, set out in law, before a person’s privacy can be invaded.

This not a new phenomenon.

In 1776 (the very same year the Declaration of Independence was signed) the then British Secretary of State, Lord Halifax, was ordered to pay damages to a Grub Street publisher, one “John Entick … concerned in writing of several weekly very seditious papers, entitled the Monitor, or British Freeholder”.

Lord Halifax had a warrant – he provided it during the trial as evidence. It was a warrant issued under his own discretion and not based on any statute or common law principle. Camden LJ famously stated:

“If it is law, it will be found in our books. If it is not to be found there, it is not law.”

Perforate a hole – however small – in the Rule of Law and the barrier that separates a free society from a totalitarian State will begin to seep. What starts out as a small leak barely visible and hardly troublesome, with time, can precipitate a gush that could prove hard, if not impossible, to staunch.

PRISM

Sitting just beyond reach in Silicon Valley –  like a tantalising and irresistible slab of raw steak – is this vast and ever expanding archive of the globe’s very private personal on-line data. Such data must be the equivalent of a secret agent’s wet dream.  The kind of information they, traditionally, would have been hard pressed to access from both a practical and/or legal point of view.

Now data sit neatly packaged and bundled together under one glorious electronic roof.  From a technical point of view it is as simple as child’s play to press a couple of buttons and for all the tasty morsels of information to just fall onto an agent’s lap.  And not just the suspect’s private information – access to everyone’s private data who may, however innocently, be linked to the suspect: private data on suspect’s neighbours, children, friends of children, headmistress of children, manager of suspect’s gym, ….

The only thing standing between an agent and the press of the button? That invisible barrier protecting a civil society from a totalitarian one – a principle dating back a few centuries and now enshrined in human rights  –  the assumption that a person is innocent until proven guilty and a warrant issued in accordance with the rule of law. The way around the invisible barrier? The creation of a “Top Secret” foreign intelligence court happy to rubber-stamps all “top-secret” NSA applications to access all private data.

If Camden LJ were to look for the law in the books he wouldn’t find it. None of us would. It is “classified”. It is only because of a whistle-blower that anyone has heard of PRISM’s top secret court awarding top-secret “drag-net” warrants.

The warrants issued by FISA, regardless of what Obama and the NSA insist, are not legal. They are discretionary executive warrants, rather like that of the Earl of Halifax in 1776 when he tried to silence John Entick on Grub Street.

That steak – with its oozing juices and tantalising smells, was just too good to resist and the NSA with the President’s blessing caved into temptation.

The PRISM programme, set-up by the NSA and approved by the executive in top secret, has punctured a hole in the invisible barrier that separates a totalitarian regime from a civilian one. A hole that is hemorrhaging people’s private data and that could be responsible for a potentially fatal internal bleed that threatens the very foundation of the rule of law on which the United States was founded and which underpins every single constitutional government claiming to respect the rule of law, human rights and democratic principles.

On the 4^th of July President Obama urged American citizens to live up to the values of the founding fathers. As an American citizen President Obama  now indeed is  a good time for you as the executive (together with the NSA) to pay tribute – not just lip-service – to the values of the founding fathers.

To re-think, in open, how the law can be used to help the security services catch terrorists and criminals whilst ensuring that the State does not have unfettered, absolute access to the civilian population’s privacy.  It is a challenge certainly –  but a challenge that a democratically elected President is more than capable of taking on and conquering.