State efforts to define the line between privacy and legitimate surveillance remind me of the time the City of Berkeley tried to declare itself a nuclear-free zone. I always hoped that President Reagan would park an MX missile on a mobile launcher right in front of city hall, just to remind the city leaders where the Constitution places the authority to protect the nation’s security.
But, at the same time, state experimentation on the balance between privacy and security should be welcomed by both libertarians and national-security conservatives. Neither extreme provides the right answer. Hopefully, no serious libertarian believes that the government should always have to seek a judicial warrant every time it wishes to conduct surveillance. Libertarians, for example, should agree that a judicial warrant wouldn’t be necessary to conduct surveillance of the communications on board an airliner that might be hijacked or in a city where WMD is thought to be hidden. At the same time, reasonable conservatives should agree that warrants should be the general presumption for peacetime surveillance of criminal law suspects.
The challenge is figuring out the right balance between extreme libertarianism and a wholly military-based approach. The right point on the spectrum will depend on circumstances created by both technology and our national-security situation.
Both sides should welcome the search for a solution through federalism. States can experiment with different points on the privacy-security frontier, come up with new mechanisms to preserve rights while respecting society’s need to protect against immediate harms, and develop new forms of cooperation between the three branches of government. Federalism allows us to see what solutions work and which ones don’t, without the mistakes spreading nationwide. Federalism also allows people to choose the policies that they prefer by moving to the states that offer them — if you don’t like a state’s surveillance approach, just like you may not like a state’s gun-rights policies, you can always move to a state that strikes the balance that you like.
At the same time, state laws cannot constitutionally block the federal government in its national-security needs. The Constitution concentrates all authority over protecting the nation from attack in Washington. States cannot stop federal authorities from conducting surveillance to prevent foreign terrorism just as the City of Berkeley could not stop President Reagan from ordering a mobile MX missile from deploying in the city limits, if he thought it necessary. So even while these state experiments on privacy continue, the federal government can always conduct the surveillance necessary to protect the nation from attack without impediment. The worst thing to do would be to try to just pick a spot between privacy and security without information being gained from testing policies.
— John Yoo is Emanuel S. Heller Professor of Law at the University of California at Berkeley.