The ruling by Judge Leon in Klayman et al v. Obama et al. was, well, peculiar to say the least. Judge Leon stayed his own ruling because it was clear from the outset that his opinion and the decision are going to be yet another phase of a conversation that will run for some time.  Sure enough, another judge in New York said that the spying was constitutional.  The Atlantic gives a nice overview of the dueling jurisprudence here.    And we are most likely off to the Supreme Court…

Essentially, the Klayman ruling boils down to a discussion re: what we believe the scope and definition of the right to privacy–and, in particular, the reasonable expectation of privacy—are in the 21^st century. 

Life changed after 9/11 and the passage of the USA Patriot Act.  Leon’s opinion makes great note of this.  As well, technological advances do make possible abridgements of freedom of the people by gradual and silent encroachments by those in power” (Memorandum opinion, p. 64., citing James Madison, “Speech in the Virginia Ratifying Convention on Control of the Military”.  Available: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-48 .

Still, can we pretend to celebrate the benefits of big data and technological advances without acknowledging the threats they pose?  I am reminded once again of the great discussion between Niels Bohr and Werner Heisenberg in Michael Frayn’s Copenhagen.  Should we limit our capacity to build upon and expand our knowledge because we fear the potential for its abuse?

This came up in a great chat I had with my colleague, Margaret Hu at the Washington and Lee law school.  I had the privilege and thrill to hear her students’ final presentations in her “Federal Civil Rights Practicum.”  A key theme was the concern about the threats posed by data collection to privacy.

We had a great discussion about the expansion of the use of DNA testing.  Sure, on the one hand it may generate false positives.  On the other hand, as Jeffrey Toobin @JeffreyToobin notes in the December 23 & 30 edition of The New Yorker, DNA testing has most likely caused a drop in the tendency to imposed the death penalty—precisely because it can be used to demonstrate the limits of less-or nonscientific proof.   As well, as Virginia Hughes (@VirginiaHughes) wrote in National Geographic (http://phenomena.nationalgeographic.com/2013/05/15/could-dna-databases-curb-human-trafficking/), while dicey still, the potential benefits from the use of DNA to stop human trafficking are truly awesome.  But, how to manage the possibilities of abuse of the data?

I guess the question with which we now confront ourselves is how to regard knowledge and its advancement.  Do we regard it through a lens colored by fear of abuse or one colored by confidence that abuse can be managed while we reap the benefits of scientific research? 

Darkness and ignorance may appear to remove sin when, in fact, they merely obscure it.  Light, at least, illuminates.