Gutter punks throw bottles at the cops near Tompkins Square Park, a police cruiser is flipped upside down in Crown Heights, two men fight under the marquee of a Times Square porn theater, and a fearful old woman clutches a pole in a graffiti-covered subway car. It was a photo album of the bad old days of New York — and during the final month of the city’s recent mayoral race, it showed up in a TV ad called “Can’t Go Back.”
The ad didn’t mention stop-and-frisk, the state law that enables police to question and search pedestrians without probable cause. But that was the underlying subject. The Democratic candidate, Bill de Blasio, had said he would reform the practice, a pledge that his opponent Joe Lhota called “recklessly dangerous.” If we stopped the illegal searches, Lhota suggested, crime would swallow us whole.
As fearmongering attack ads go, Lhota’s was pretty slick. True, one of the images turned out to be of a crime scene from December 2012, converted to black and white to give it a suitably old-timey look. But the ad was catchy, and quick to spawn a thousand terrible jokes about the criminal hordes of #deblasiosnewyork on Twitter.
1 Even the old woman on the subway car might have been braver than she appears. Richard Sandler, the man who photographed her, told me, “She wasn’t scared as far as I could tell — it was the middle of the day.”
New Yorkers, however, weren’t cowed: de Blasio was elected in a landslide.1 I’d like to think that, given the choice between an unjust policy and riots in the streets, voters chose the riots. It would be a defiant stand in favor of the Fourth Amendment, which safeguards the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” But more likely, they recognized Lhota’s doomsaying as speculative, while the benefits de Blasio was promising — affordable housing and universal pre-K — seemed attractively tangible.
Still, ignoring these scare tactics was progress of a sort, and the election cleared the way for an overhaul of stop-and-frisk. In August, a U.S. district court decision had called the searches racially discriminatory. “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life,” Judge Shira A. Scheindlin wrote in Floyd v. City of New York. Michael Bloomberg, then in his final weeks in office, wasn’t convinced. “I wouldn’t want to be responsible for a lot of people dying,” our mild billionaire mayor explained, and went on to appeal the decision, a move that eventually put Scheindlin’s rulings on hold.
On January 30, a month after his inauguration, de Blasio announced that he was withdrawing the city’s appeal. At the press conference held that day, Police Commissioner Bill Bratton (no friend to civil libertarians) said, “We will not break the law to enforce the law.” Implying, of course, that Bloomberg did. But Lhota’s ad must have gotten under the new mayor’s skin. For every line about liberty and rights, there were three about security. Reforming stop-and-frisk, de Blasio insisted, would “lay the foundation for not only keeping us the safest big city in America, but making us safer still.” Zach Carter, the city’s chief lawyer, added that defending the rights of every New Yorker was “not an imperative at odds with keeping our people safe.”
They’re probably correct. Indeed, we already have some data on the matter. As Floyd made its way through the court system, the NYPD drastically reduced the frequency of its stops: there were 533,000 in 2012 and only 192,000 in 2013. The annual murder rate fell from 417 to 333 in the same period. Apparently we could have it both ways, preserving our liberties and cutting back on crime. But what if the numbers had swung in the other direction? Would we trade 341,000 nonharassed citizens for eighty-four more dead ones? We might never know. For the time being, the New Yorkers targeted by stop-and-frisk should feel lucky that their Fourth Amendment rights have proved so compatible with the city’s endless campaign to be safer still.
Like the Central Intelligence Agency, the National Security Agency drops the definite article when it refers to itself. So when I wrote them to ask how much they had been spying on me, they began with the assurance that “NSA cannot review any metadata unless strict requirements are met.” Then NSA told me to buzz off:
Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.
They didn’t bother to explain how the information, had it been given to me, would have ended up in the hands of our adversaries. Perhaps, since they know so much about me through my email, Web, and phone use, they figured that anything they gave me would eventually be published in this magazine. Or maybe they saw the electronic trail linking me to suspicious persons (that is, reporters) in Pakistan, Syria, and Afghanistan and figured I was an adversary myself. But when I discussed the agency’s letter with Ben Wizner, a lawyer at the American Civil Liberties Union who represents Edward Snowden, he said it was nothing special. He described it as “the standard Glomar response.” (The CIA built the Glomar Explorer in the Seventies to salvage a sunken Soviet submarine, all the while refusing to confirm or deny that the ship existed.)
My letter probably didn’t set off any particular alarm bells, then. It’s just that the NSA doesn’t trust us — any of us. That’s why bulk data collection exists. And no matter how often President Obama or the NSA or the FBI protest about how seriously they take our civil liberties, it’s clear that they want to do even more of it. Hoover up every last digital trace and store it indefinitely, just in case.
The Fourth Amendment protections, such as they are, all fall on the analysis side. The feds have your data, but they need a warrant to look at it. That might strike some as protection enough, especially because phone taps and server back doors aren’t terribly visual. So let’s imagine the police installing cameras in every room of your house, but promising to look at the footage only if you do something wrong, or, okay, if you know someone who knows someone who is suspected of having done something wrong.
I can think of all sorts of good reasons why I wouldn’t want the government to have that power, and since I’m a law-abiding citizen, most of them have to do with the potential for abuse: a leaky NSA database, an ex-girlfriend working for the executive branch, a president with Nixonian insight into who his enemies are. The simplest argument, however, is that it’s unconstitutional. The government’s surveillance program is so far removed from what the Fourth Amendment defines as a permissible search (which has to be reasonable, restricted, and subject to probable cause) that it’s hard to believe they thought they could get away with it — and still think they can.
As with stop-and-frisk, the government is relying on two powerful tools: secrecy and fear. For the most part, these programs are conducted out of public view — until Floyd, what the cops did in the Bronx may as well have been kept classified for all the attention it got in the press. And failing that, the feds and the city can count on their citizens’ memories of the terrorist attacks and murder rates of decades past to keep them from asking too many questions. In the name of safety, the government wants to pat you down on the street and make a copy of your emails — deal? Of course it’s a deal.
On January 17, two weeks before de Blasio insisted that the police didn’t need stop-and-frisk to keep us safe, President Obama delivered a speech that addressed opponents of the bulk-data-collection programs. The president was in an odd position: he said he welcomed the debate, but he’d been keeping most of the activities he discussed secret for five years. In his speech, Obama offered few details about the changes he had in mind and the timeline of their implementation. One point he made sure to repeat, though, was how our rights and our safety were forever yoked together: “Now, the reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law-enforcement agencies maintain the tools they need to keep us safe.”
Again, our government is promising us we can have it both ways: we can be 100 percent safe and 100 percent free. If Obama decides to do away with some aspects of bulk data collection — by retiring the phone-metadata program, for example, or giving it to Verizon to run — he can mollify critics by pointing out that these illegal searches have had, in the words of a report from the New America Foundation, “no discernible impact on preventing acts of terrorism.” And so we may again avoid the day of reckoning: it’s easy to preserve civil liberties when the tools encroaching on them are so useless. But it’s a frail victory. The NSA is getting better at its job all the time.
Two hundred sixty years ago, well before the Glomar Explorer either did or did not set sail, Shawnees were attacking Englishmen on the American frontier. The frontier, at the time, was in Pennsylvania. In Philadelphia, the colonial assembly voted to raise a militia to fight back, but Governor Robert Hunter Morris rejected the bill because the assembly proposed a tax on all landowners to pay for it. Morris insisted that the legislation exempt the Penn family, who were the largest landowners in the colony (and had appointed him to his position). The assembly, led by Benjamin Franklin, refused to revise the bill.
It may have been the first time an American dispute started with a proposed tax on the rich. It certainly wasn’t the last time the country was threatened by what Franklin, in his Historical Review of Pennsylvania (1759), called the “insidious attacks of small parties of skulking murderers.” In Franklin’s account, Morris wanted to be made “provincial dictator” and was exaggerating the threat from the Shawnee and their French allies in order to get his way. (“The populace are never so ripe for mischief as in times of most danger.”) The assembly, in any case, wasn’t persuaded: better to let the frontier burn than accept Morris’s proposal. Their reply to the governor: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”2
2 This line, almost certainly written by Franklin, so pleased him that he cited it twice in his Historical Review, claiming that “[t]here is not in any volume, the sacred writings excepted, a passage to be found better worth the veneration of freemen.”
Time has edited the phrase to remove the adjectives; Franklin would probably admit that there’s really no such thing as permanent safety or inessential liberty. And its application has shifted over the years. In the eighteenth century, fighting for liberty meant preserving the power of the legislature; today, it means preserving the power of individual citizens to resist the state’s intrusions. But Franklin’s sentiment, made universal, should be the one to guide us in this debate.
Earlier I claimed that invoking the Fourth Amendment is a sufficient argument against the NSA and stop-and-frisk. It is certainly the one that should be used to mount legal challenges to both. If the courts can beat us about the head with the Second Amendment, let’s seize the weapon we have in the Fourth. If Obama wants to be a legal positivist (the Foreign Intelligence Surveillance Court says the data collection is legal, so justice is satisfied), then we’ll fight him on his own terms. But the true power of the Fourth Amendment comes not from its status as law but from the fact that it protects a fundamental human right. Constant government scrutiny of all citizens is incompatible with any reasonable notion of a free society. Spying on Angela Merkel requires a cost-benefit analysis; spying on all Americans does not.
Heeding the Fourth Amendment can be dangerous. A society without the protections it affords would undoubtedly be more secure — at least, ahem, temporarily. But as Ronald Dworkin argued (back in 2003, when President George W. Bush was trying to discover which books we were checking out of the library), “rights would be worthless — and the idea of a right incomprehensible — unless respecting rights meant taking some risk.” Both Obama and de Blasio are promising us risk-free rights. By now, I hope, Americans know when an offer is too good to be true.
Accepting the primacy of liberty over security is not a repudiation of the latter. I hope the crime rate stays low and the terrorists are foiled. We’re fortunate that, for now, it’s turning out to be easier to stop terrorists with traditional spy craft than with total surveillance, that New York’s falling crime rate isn’t contingent on treating its poor like second-class citizens. But liberty must always be the starting point, the platform on which we build a safer state — it so rarely works in the other direction.
In 1951, the Supreme Court justice Hugo Black lamented the damage being done to the First Amendment by McCarthyism. “There is hope, however,” he wrote, “that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong.” At the time, much of the American mainstream believed that enforcing those very liberties — freedom of speech, freedom of the press — would leave us at the mercy of our enemies. The First Amendment was, in a word, dangerous. Yet in the decades that followed, it began its slow but relentless march to the sacrosanct place in our politics that it now occupies. As present fears subside, let’s send the Fourth Amendment to follow the First.