The instant reaction to this news has been mixed. As might be expected, the civil libertarians have cast the measures as the latest chapter in America’s slow descent into ubiquitous security theater. Before long, they have proposed, we will be living in Richard Brautigan’s country; still free in many ways, yes, but living our lives on camera rather than in camera, and raging impotently as we are woven slowly into an irreversible “cybernetic ecology” and “all watched over by machines of loving grace.” The government is spying on cars? Naturally. And soon they will have graduated to ankle bracelets, and then . . .
Those who are more interested in security than in liberty, meanwhile, have taken precisely the opposite approach. Because the state is acting in the public square, they note, there is no obvious Fourth Amendment violation here. In consequence, they establish, there are no rights being violated per se, no codified principle is being undermined, and it will be almost impossible for opponents of the scheme to mount a challenge in court. Their bottom line, if I’m reading it correctly, is that this isn’t a question of “privacy” as we traditionally understand it, and that it should therefore not be inspiring knee-jerk condemnation or appeals to American radicalism.
All told, I cannot say that I am convinced by this latter argument. “It’s legal” is a convincing rejoinder when the question is “May the government do this without falling foul of the Constitution?” But it is rather irrelevant when the inquiry is “Should the government be doing this at all?” Effectively, defenders of the DEA are telling us that we are dealing here with a political, not a legal question, and they are drawing a crucial distinction between the public and private realms. That’s fine. But, there being a difference between what is legal and what is right, they are not making a case for its acceptability. Given the axioms of contemporary jurisprudence, it would not be illicit for the federal government to impose a flat tax of 90 percent, or to fill the national parks with sulfur, or to insist that gasoline contained at least 40 percent chocolate. Nor, for that matter, would it violate the law for the feds to hire 10 million secret police to keep an eye on California. Nevertheless, such measures would be incompatible with the presumptions and expectations of a free society, and we would expect the people who populate that society to push back. Why not here, too?