Julian Sanchez on Pilon and Epstein’s Defense of the NSA Electronic Data Collection Program

Last week, Roger Pilon of the Cato Institute and famed libertarian law professor Richard Epstein published an op ed defending the NSA policy of collecting data on millions of Americans’ electronic communications. Pilon and Epstein may be the only prominent libertarian defenders of the NSA on this issue; though, obviously, that doesn’t necessarily mean they are wrong.

Pilon’s Cato Institute colleague Julian Sanchez recently posted a thorough and compelling critique of Pilon and Epstein’s argument. I think this part does a great job of capturing the main danger posed by the program:

[T]he crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience—though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster….

Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.

Among other things, Sanchez’s post includes a good critique of Smith v. Maryland, the 1979 Supreme Court decision cited by both Pilon and Epstein and many other defenders of the NSA program. Like Sanchez, I am a big fan of Epstein and Pilon’s work on many other issues. But I think they have gone wrong in this case.

NOTE: I am a Cato Institute adjunct scholar, an unpaid affiliation that does not give me any authority over Cato policy. But, from what I can tell, I think Sanchez is correct in stating that most Cato scholars are closer to his position on this issue than Pilon’s and Epstein’s. The Pilon-Epstein op ed was not an official Cato publication.

UPDATE: I have made a few minor stylistic corrections to this post.