Why I’m Praying for More Judicial Activism against Online Privacy

We all knew this was coming. Yesterday, the courts pushed back against earlier rulings on privacy and the NSA’s data-collection schemes. From the New York Times :

“A federal judge on Friday ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data

In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.”

I do hope that the US Supreme Court picks this case up. Not that I’m expecting the court to rule in favor of privacy, I just want some definitive status-quo so that an honest discussion of the issue can take place. I get the sense reading the news that no one really understands what’s at stake or the relevant precedence in law for online privacy. The technology is changing fast and, consequently, no one feels like its worth developing a strong opinion. At this time, a large judicial decision might help people wake up and become involved with the issue of digital privacy.

I think this is more or less the role that Roe vs. Wade had on the issue of abortion. Before the landmark ruling, the anti-abortion movement was a disorganized coalition of church groups shell-shocked by the sexual revolution and unable to put forward any argument beyond dogma. Forty years later, with the specter of Roe vs.Wade still looming, the Pro-Life community had formed itself into a cohesive and burgeoning movement dwarfing its opposition on the national stage.

I would hope something similar might be possible for the advocates of online privacy. A setback wrought through judicial activism would be bad; but could anything be worse than the slow deterioration of privacy through apathy and public ignorance?

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