When you pick up the phone and make a call, is it anybody else's business who you're talking to? On the surface, the answer is obvious - of course not. Narrow exceptions to that rule might include certain business or professional situations or if there is a reasonable basis for law enforcement officials to have an interest in who you are talking to because of your earlier suspicious behavior. But 99.9 percent of the time, personal phone calls are just that - personal. What happens on the phone, stays (or disappears) on or from the phone. Who you called, what you said, the fact that you made a call at all is nobody's business you don't want to include in your own circle of trust. It certainly isn't the business of the government.

At least that's what we used to think.

Ever since 9-11, however, we've consented, as a society, sometimes willingly, sometimes grudgingly (think waiting in line at airport security), in a steady erosion of what used to be seen as a protective zone of privacy.

This has been justified, those responsible for national security have maintained, to protect the nation against another large-scale terrorist attack. And it is hard to measure how valuable that privacy zone is when balanced against large loss of life. Is your personal privacy space worth even one life, if that life could be saved by a small and virtually unnoticed intrusion? Maybe not. Maybe it isn't even a "maybe;" certainly not to the person whose life is at stake in this hypothetical example.


Advertisement

To some degree, the old sphere of privacy was maintained by the inadequacy of technology to monitor much more than what could be gathered in old fashioned telephone taps. But we've long ago blown way past that, as the documents purloined by Edward Snowden, the rogue private federal contract employee have revealed, for better or worse. Nowadays, and predating 9/11, the National Security Agency hoovers up vast amounts of data - known as "metadata" - that tracks the phone numbers you dial (if that's still the right term to use in this keypad, iPhone era), if not the content of those calls. Does it matter to you that somewhere in the bowels of the federal government they can determine you called a certain party five times last week?

Assuming there's nothing to hide, who cares?

Last week, a federal district court judge in New York ruled the NSA's telephone monitoring was perfectly legal and constitutional. That was a totally opposite conclusion to one reached only a few weeks earlier, by a federal judge in Washington D.C. , which found the practice "Orwellian." Clearly, the cases which spawned the two conflicting decisions are likely to work their way up the legal chain to the U.S. Supreme Court; possibly by next year. Is such monitoring and collecting of "metadata" essential to preventing a terror attack? The record is unclear, in part because of the inherently secretive nature of intelligence work. But in the end, it seems to come down to a case of the government and intelligence officials saying "Trust me." And trust in institutions like government and its many agencies is critical to making a society flourish. Trust is part of finance - look what happened when trust collapsed in 2008. We're still recovering from that one. Trust between people, between businesses, between the governed and the government is the glue that makes it all work as it's supposed to. Strip that away, and we have big problems.

On the other hand, you could point to the Boston Marathon bombing of last April and say - aha! - all the metadata that should have raised a red flag there didn't. So the security argument is bogus, and what we have is a bunch of paranoid spooks trampling on the Constitution.

Which brings us back to the question - if you make a phone call, do you forfeit a reasonable right to privacy, because you've shared the phone call with a third party - i. e. , the phone company (or Skype or some other Internet service)? That was the legal justification on which the NSA built its metadata program, although the judges in the 1979 case - Smith vs Maryland - that set that standard probably never anticipated cell phones and the communications revolution of the past 20 years.

A presidential review group that filed a report around the same time as the decision in Washington which found the NSA program an overreach and a violation of fourth amendment protections sought a middle ground between the two contrasting judicial opinions. Such monitoring may be bumping up against the limits of acceptability, but it's still a dangerous world out there, and we can't unilaterally disarm and drop our best weapons against the bad guys, they more or less argued.

Point well taken. But the drip, drip, drip erosion of privacy is a troubling trend. When you consider the possibilities unleashed by surveillance drone technology, ostensibly for good purposes but easy to manipulate into other, less savory ones, it's getting scary out there.

Absolute privacy is, like all privileges, not unlimited. Just like you can't shout "fire" in a crowded theater, to quote the classic example of the limits of personal freedom, it is unreasonable to expect that if you give the government a good reason to keep tabs on you, they shouldn't, or won't be able to. What is clear is that they should have a defensible reason to keep such tabs in the first place.

But we long ago crossed into a new era where such distinctions are getting blurry. The burden of proof should be on those who would argue for less personal privacy space. Instead, we seem to be sliding, one small step at a time, into Big Brother land. It may already be too late to stop.

The judge in Washington was on the right track. This case needs to make its way to the Supreme Court as soon as possible. Orwell isn't on hold.