In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes.
The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes.

Disputes at the intersection of national security, surveillance, civil liberties, and transparency are nothing new, but they have become a particularly prominent part of public discourse in the years since the attacks on the World Trade Center in September 2001. This is in part due to the dramatic nature of those attacks, in part based on significant legal developments after the attacks (classifying persons as “enemy combatants” outside the scope of traditional Geneva protections, legal memos by White House counsel providing rationale for torture, the USA Patriot Act), and in part because of the rapid development of communications and computing technologies that enable both greater connectivity among people and the greater ability to collect information about those connections.
One important way in which these questions intersect is in the controversy surrounding bulk collection of telephone metadata by the U.S. National Security Agency. The bulk metadata program (the “metadata program” or “program”) involved court orders under section 215 of the USA Patriot Act requiring telecommunications companies to provide records about all calls the companies handled and the creation of database that the NSA could search. The program was revealed to the general public in June 2013 as part of the large document leak by Edward Snowden, a former contractor for the NSA.
A fair amount has been written about section 215 and the bulk metadata program. Much of the commentary has focused on three discrete issues. First is whether the program is legal; that is, does the program comport with the language of the statute and is it consistent with Fourth Amendment protections against unreasonable searches and seizures? Second is whether the program infringes privacy rights; that is, does bulk metadata collection diminish individual privacy in a way that rises to the level that it infringes persons’ rights to privacy? Third is whether the secrecy of the program is inconsistent with democratic accountability. After all, people in the general public only became aware of the metadata program via the Snowden leaks; absent those leaks, there would have not likely been the sort of political backlash and investigation necessary to provide some kind of accountability.
In this paper I argue that we need to look at these not as discrete questions, but as intersecting ones. The metadata program is not simply a legal problem (though it is one); it is not simply a privacy problem (though it is one); and it is not simply a secrecy problem (though it is one). Instead, the importance of the metadata program is the way in which these problems intersect and reinforce one another. Specifically, I will argue that the intersection of the questions undermines the value of rights, and that this is a deeper and more far-reaching moral problem than each of the component questions.

Privacy depends on the degree to which others can access information about, observe, and make inferences regarding a person or persons. People considering the societal implications of nanotechnology recognized early on that nanotechnology was likely to have profound effects upon privacy. Some of these effects stem from increased computing power. Others result from smaller, stronger, and more energy-efficient surveillance devices and improved sensor technologies. More speculatively, nanotechnology may open up new areas of surveillance and information gathering, including monitoring of brain states. Regardless of the precise ways nanotechnology affects information gathering and analysis, there are persistent social, legal, and moral questions. These include the extent to which persons have rights to privacy, the possibility of widespread surreptitious surveillance, who has access to privacy-affecting technologies, how such technologies will be treated legally, and the possibility that developing technologies will change our understanding of privacy itself.

A suite of technological advances based on nanotechnology has received substantial attention for its potential to affect privacy. Reports of the National Nanotechnology Initiative have recognized that the societal implications of nanotechnology will include better surveillance and information gathering technologies, and there are a variety of academic and popular publications explaining potential effects of nanotechnology on privacy. My focus in this paper is on the privacy effects of one potential application of nanotechnology, sensors capable of detecting weapons agents or drugs- – nanosensors or sensors for short. Nanotechnology may make possible small, accurate, and easy-to-use sensors to detect a variety of substances, including chemical, biological, radiological, and explosive agents, as well as drugs. I argue that if sensors fulfill their technological promise, there will be few legal barriers to use and the relevant Constitutional law makes it likely that police sensor use will become pervasive. More importantly, I use the possibility of pervasive sensing to analyze the nature of privacy rights. I set forth the Legitimate Interest Argument, according to which one has no right to privacy regarding information with respect to the state if, and only if (a) the state has a legitimate interest in the information, and (b) the state does not garner the information arbitrarily. On this view, pervasive use would not impinge rights to privacy. Rather, it presents an opportunity to protect privacy rights.