FRONT PAGE CONTRIBUTOR
The end-user license of liberty
One of my favorite Dilbert cartoons showed the hero’s laconic office mate, Wally, discovers to his horror that agreeing to the Microsoft End User License Agreement meant he would have to spend several months of indentured servitude as a towel boy at Bill Gates’ pool. I thought of it when hearing the sarcastic suggestion today that we might all have unknowingly agreed to the NSA’s PRISM super-surveillance program by clicking on all those end-user agreements.
Some of the anger over PRISM comes from Americans who saw it as a violation of the EULA of liberty. We like to think we operate under a default assumption of innocence and privacy, which the government violates only with good reason. ”Innocent until proven guilty” is built into the legal system of checks and balances that shield us from the power of the State, which can do some pretty dreadful things to us – right up to the use of deadly force – but not on a whim. The idea behind these checks and balances is to place every proposed infringement of our rights beneath numerous pairs of skeptical eyes, before any action is taken. Other eyes, and ultimately the voting public, will review those actions afterward.
Not only do we expect the government to respect our rights, but we don’t want it constantly staring down at us, either. We expect to conduct our daily business with only minimal government contact, except in a few areas that clearly require strict regulation for the public good, such as automobile driving. Otherwise, if we are breaking no laws, we expect to pass beyond the gaze of the State. Most of us want to obey the law, having no appetite for trespass or injury against our neighbors. Not only is this proper conduct for good people, but we understand that our respect for liberty can only flourish when most of us respect the law. The system of government necessary to restrain a great population of savage predators is very different from the way a community of essentially well-meaning folk can live.
But we don’t live that way, not any more.
Our body of laws has grown far beyond the ability of well-meaning people to understand it and voluntarily respect its full measure. Almost all of us could easily be established as criminals if the government wanted to. That’s one reason a vast, perpetual, easily searchable database of our communications is a dangerous tool in the hands of activist government.
And we do have activist government. It long ago lost its focus on the performance of a minimal set of duties, largely oriented toward promoting our common safety. In fact, it chafes at demands for it to address such duties when it finds them politically inconvenient – for example, border security. The government does not treat its citizens equally. It makes value judgments about what they “need” and “deserve,” then acts accordingly. Its agenda is so vast that it must tax away a portion of almost every productive activity, taking pains to fine-tune those demands just enough to avoid killing its host free-market organism. Notice how even in a time of slack economic growth and agonizing high unemployment, there is little serious talk of reducing the burden of government, not in any way that would greatly reduce the amount of power it wields. Such reforms are unthinkable; there is nothing to discuss except which industries the State will subsidize, or how it can distribute wealth to the “deserving” in a way that creates more jobs.
There can be no presumption of privacy or innocence against this system. You don’t have to do anything “wrong” to suffer punitive measures. Your activities must be monitored, so they can be controlled.
This extends to activities that should enjoy vigorous protection from our Constitution. When the IRS is criticized for telling politically disfavored groups how to practice their religion, apologists respond by saying they brought it upon themselves by seeking tax exemptions. But these measures were not distributed evenly across the political spectrum. Groups on the Left sailed right through the IRS process, gaining a valuable competitive advantage over the pro-life and Tea Party groups President Obama and his Party dislike. Granting such advantages disproportionately to one side in a debate is a disadvantage against the other side – a hill that some must climb, while others roll easily down the other side.
That’s not how we view the end-user license of liberty presented in our Constitution. It’s supposed to be a list of things the government cannot do, no matter how important or beneficial the political class thinks they are… or even how many citizens they can convince to support them, unless, of course, they can rally enough support to change the Constitution itself. Isn’t that beautiful concept really just another way to say “innocent until proven guilty?” We shouldn’t have to justify those essential liberties, or defend them against constant assault. We shouldn’t have to explain why we really, truly need them to politicians angry that our insistence upon individual liberty has thwarted some grand design of theirs, to the grave disappointment of their enthusiastic constituents.
It’s vile sophistry to say our super-sized government still respects the rights of law-abiding citizens… and then make it almost impossible to be a law-abiding citizen, despite the best intentions in the world. And in any event, the activist State no longer bothers with the pretense of leaving citizens alone until they commit a crime. The political class is now in the business of defining and punishing sins, which can lurk in the hearts of citizens even when every law is scrupulously obeyed. One of the sins they’ve been most exercised about over the past few years is “income inequality.” What laws must you break to be “guilty” of that? How can anyone hope to retain dignified privacy when the State is on constant patrol against such an “offense?”
The system of government that surrounds us is fundamentally incompatible with the classical understandings of privacy, freedom, or even dignity, as the Tea Party targets of those IRS witch hunts could tell you.