This story is an indication of how far we have strayed from the society which founded this nation:
Tech giant’s executive chairman calls for greater transparency but declines to ‘pass judgment’ on spying operations
Our nation was founded upon the principles of Natural Law, Natural Rights and the Social Contract – as Locke understood them. Under this understanding – the understanding of our founding fathers – the government can have no authority to do anything that you and I do not have. In other words, government can never become greater than any of its individual creators. Government is a servant and never the master. Therefore, unless you and I can claim a Natural Right to spy on each other – which we cannot do under Natural Law – then the government cannot claim such a right. The best we can do is to grant a civil authorization to government to do so and even then, only under very narrowly defined conditions. This is why we have a 4th Amendment: to define these narrow conditions.
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.
Essentially, the right to be secure in our person, property, papers and effects is the right to privacy. The nature of a ‘reasonable’ search depends upon the evidence that we have violated an essential term of the Social Contract. Government’s power to look into our private affairs comes from the reason for the Social Contract: to protect individual rights and liberty. If there is no indication that a citizen has actually harmed another person or caused monetary damage to the private property of another person, then there can be no authority for government to infringe on that person’s Natural Right to privacy. The government cannot first look for that evidence and then claim authority; the evidence must be presented before government can claim the authority to look into our private affairs. This is why the 4th Amendment stipulates that someone must swear an oath or affirmation of what it is I am said to have done and what the government is supposed to look for and where the government should look to find it. Any search or discovery outside the thing(s) this oath alleges would not be within government’s power to investigate – period.
In this sense, a government search is the transfer of our collective Natural Right of self-defense to the government. We have no Natural Right to invade each other’s privacy. However, if we know that another person has caused harm, or we have reasonable cause to suspect another person has caused harm, then we do have a Natural Right to defend ourselves and our neighbors from that harm. This would then give us a Natural Right to investigate the person suspected of having caused the harm – but not before or without reasonable cause. When we enter into a society (i.e. agree to the Social Contract which formed that society), we agree to transfer the majority of our Natural Right to self defense to the government. However, under Natural Law – as our founders understood it – the government is still bound by the same restrictions as each of us is individually. Thus, the government still needs a citizen or citizens to present the evidence that justifies a search. We cannot just ‘spy’ on each other until we find evidence, then go back and use the results of our spying against that person after the fact because, before the evidence is presented, it is we who are violating Natural Law. And, in the case of government spying before hand, the government is violating both Natural Law and the Social Contract.
This is why the NSA and other domestic spying programs is such an egregious offense. It amounts to a total reversal of the foundation of this nation. Hobbes is the one who argued that our rights come from government. The European model is the system of justice where a person is assumed guilty and must prove they are innocent. None of this is “American” in nature. None of this is in accordance with the principles of individual rights and liberty.
Nor can we claim that a violation of the Social Contract/Natural Law is allowable in the name of security. The government mandate to protect and defend is not a mandate of ordered importance. In other words, it is not above the government’s mandate to protect the Natural Rights of every individual. If this means our society is put at risk in order to protect the individual rights of our citizens, then this is simply the price that a free society must be willing to pay. To claim otherwise is to claim society is greater than the sum of its parts, thereby rendering the Social Contract null and void. Republican government and the rule of law cannot recognize an artificial entity as having more rights than any of the real persons who created that artificial entity. At the point where the rights of society (artificial) are asserted to be greater than the rights of any one citizen (real), liberty and the rule of law end and tyranny begins.