All of the concern over the NSA surveillance program raises a fundamental question: Are privacy issues related to government surveillance matters of kind or degree? I tend to think that they are the latter. the government conducts surveillance on citizens daily without probable cause: airport screenings, photoradar used in traffic enforcement and DUI checkpoints are all types of surveillance that seem to be generally regarded as proper.
In considering the propriety of surveillance, people obviously try to find the distinctions between the types of "proper" surveillance referred to above, and the surveillance conducted by the NSA and other agencies under the Patriot Act. Some such distinctions include: certain expectations of privacy that attach to phone calls are waived to varying degrees when one boards an airplane or drives on a public street.; phone conversations inherently invoke freedom of expression which might be chilled by the possiblity of surveillance--an issue that does not affect plane travel or driving a car. Closer examination of these distinctions reveals them to be matters of "how much" rather than "what kind." It is a question of how much of an expectation of privacy that we attach to an activity before it invokes constitutional principles. Likewise, it is the degree to which an activity might be regarded as protected expression before it is protected by privacy concerns. Not all expression is constitutionally protected, after all. The underlying principle that I have sought to illustrate by way of example is that there are no activities that are absolutely protected from surveillance. Even certain physician/patient. and attorney client communications are subject to compelled disclosure. Legal protections of those activities are always qualified. They depend on the boundaries that we as a society have drawn to balance personal and societal interests. Thsese boundaries are proper matters for legislative definition rather than judicial divination.
The acceptable limits of government surveillance should be clearly defined by congressional action agfter vigorous debate and responsible reflection. They should not be fashioned from the penumbras of dusty precedents, hard facts, and tangential analogies.