Saturday, May 22, 2004

Jeffrey Rosen’s “The Naked Crowd” can be an intriguing and engaging book, provided you accept the author’s basic premise: You’re a jerk.

Mr. Rosen, a professor of law at George Washington University and legal affairs editor at the New Republic, doesn’t put it quite that baldly, of course. Rather, he refers to “the public.” As in “the public fears, the public wants, the public demands, the public forces the government to …”

The public, according to Mr. Rosen, is afraid. Very afraid. It wants all kinds of counter-terror and national security legislation to make it feel safer, whether this legislation works or not, and even if it and its implementation sacrifice constitutional rights. Indeed, the public positively demands the right to surrender its rights for the sake of feeling protected.

Why? Because we live in a “risk society” where we’re all alone and clueless, and where we judge the authenticity and trustworthiness of others by their self-revelation. From demanding that we know everything about Ben Affleck and J-Lo to demanding that everybody be stripped naked by government surveillance and data-mining as security measures — it’s all part of the same mentality.

Not so long ago, the common law enshrined a concept known as the “reasonable man.” Today the common law considers us idiots. We’re endlessly gullible, unwilling to read and/or unable to understand the documents we sign or the ballots we punch, and perpetually in need of protection from all others and ourselves.

Mr. Rosen locates our willingness to surrender our rights in culture and society. Perhaps he should have added a chapter on how the lawyers and the state have contributed to this sorry affair.

That said, Mr. Rosen makes several valid points. One is that, while there must inevitably be trade-offs between security and liberty in the age now upon us, how we effect the trade-offs matters greatly.

Technology can hinder or help. The author cites as an example what he calls the “Naked Machine,” a technology that can process people through security checkpoints by projecting an image of their naked bodies on the screen. An alternative technology, which he calls the “Blur Machine,” would perform the same function via projection of a neutral mannequin.

Also at issue: matters such as linking databases and constructing systems so that a person’s name appears only when there’s probable cause to believe that he or she is a really bad actor.

Another point — perhaps the most critical of the book — is that the Fourth Amendment prohibits what the Founders knew as “general warrants” and modern courts describe as “fishing expeditions.” The state’s authority to investigate and intrude must be rationally related to something specific. Nor may the investigation of trivial offenses be undertaken to go fishing for deeper evils and complicities.

But this is exactly what’s happening today. Omnipresent surveillance cameras, biometrics, and the rest constitute de facto general warrants. These arrangements rarely catch terrorists. They do, however, pick up a lot of stolen car license plates, shoplifters, and the like.

While it can be permissible and even beneficial to haul in these types, it is patently wrong to round up suspected terrorists and punish them severely for relatively trivial offenses. As the integration of databases proceeds and the technology improves, this form of state power against everyone increases exponentially.

Would you like to be denied permission to board an aircraft because you have some outstanding parking tickets? Or denied boarding until you pay up? Or arrested? It’s possible.

So how to retard this process? Curiously, Mr. Rosen does not believe that the first line of defense should be the courts. These he considers both too slow and too influenced by public opinion — a notion that might stir more than a little incredulity, plus some bitter laughter, among American conservatives.

Rather, he places his faith in legislative oversight — Congress riding herd on the executive branch. Common sense would indicate that elected representatives are far more beholden to public opinion than appointed judges. History would indicate Congress’ extreme reluctance to take forceful action against the executive, and general propensity not to do anything until after the next election.

Indeed, despite all the posturing and pouting, and despite an occasional impeachment, Congress practically never effectively employs its one overwhelming power: cutting off the funds.

Personally, I’ll place my trust in We the People, a group perhaps best defined as “the public” — when it refuses to behave like, or be treated as, the jerks our government and our elites too often expect us to be.

Philip Gold is president of Aretea, a public and cultural affairs center, and author of “Take Back the Right” (forthcoming from Avalon Publishing).

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