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Richard Epstein: After the Boston Bombings, More Surveillance Is Warranted

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by Publius
Posted May 01, 2013, 9:40 AM

Richard Epstein, Laurence A. Tisch Professor of Law at NYU School of Law, comments at the Hoover Institution's Defining Ideas:

. . .The Tsarnaev brothers’ attack at the Boston Marathon has brought forth an insistent public call for an increase in surveillance to detect suspicious activities before it is too late. To be sure, there are always technical difficulties in using surveillance devices. But any objection on that ground should be treated solely as means-ends questions, which can in large measure be answered by improved software in such key areas as facial recognition detection. The moral, social, and constitutional objections are sadly misplaced.

Yet, post bombing, intense political opposition has arisen in Massachusetts over the wider use of drones and other surveillance devices at next year’s Boston Maraton. Republican Sen. Robert Hedlund of the Massachusetts Legislature has sponsored restrictive legislation on drones with two key provisions. First, the legislation would prohibit the generalized use of drones in Boston, without the explicit prior approval of local governments, including the Boston City Council. Second, the legislation would “prohibit data collection about lawful peaceful activity,” which in turn would be backed up by public disclosure of drone use.

Hedland’s stated rationale runs as follows:

It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable. . .

You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.

Hedlund is dead wrong here—and this is from a writer whose entire career has been devoted to imposing workable and principled limitations on government power.

First, the essential task of government is to preserve the life, liberty, and property of all individuals within its jurisdiction against their forcible destruction by other individuals. Second, a system of ex post (after the fact) criminal punishments forms at best only one part of a coherent and comprehensive strategy.

Compensation after the fact from terrorists is rarely, if ever, available. And even if it should magically materialize, it does not bring dead people back to life or heal the wounded. Criminal sanctions will not deter suicide bombers, nor can they be meted out in proportion to the mayhem that these people cause. Major ex ante (before the fact) precautions are imperative to stop the endless loss of life and limb that ex post sanctions cannot deter.

Nor is there any “pretext” at work in insisting on greater deterrence. It is easy to pooh pooh a major social threat like terrorism by reducing it to the conduct of “young punks,” the very people most likely to engage in violent activity.

Unfortunately, Hedlund compounds his initial error with two further mistakes. His first is constitutional, with the false claim that our rights of privacy under the Constitution are “nonnegotiable.” Fortunately, no provision of the United States Constitution requires this rigid and destructive point of view.

The basic command of the Fourth Amendment says that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” For these purposes, the operative term is “unreasonable,” which, in light of the weighty interests on all sides of the dispute, requires some public judgment that compares the risks of inaction with those of excessive action. This unavoidable balancing process makes it foolish to elevate privacy—itself a complex notion—to that “nonnegotiable” status under a Constitution that also values the protection of life, liberty, and property.

Second, the last thing needed in these difficult circumstances is a squeamishness about aggressive government action. It is wholly unwise to think that we can turn surveillance devices on and off with the flip of a switch, as Hedlund proposes, and still get the information we need. The correct approach is to do exactly what Hedlund would stop: collect troves of information about the conduct of people in public places, which can then be stored for future use.

The key protection of civil liberties lies in the restricted access and use of that information. . . .

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