Restoring the Right to Be Left Alone: Unfinished Business

In today's electronically-enhanced world, Congress should not allow inflated fears of terrorism to justify encroachments on Americans' privacy through weakened privacy protections of digital data.

January 11, 2016

Cross-posted on the Huffington Post

The spark of the American Revolution was the right to be let alone, "the most comprehensive of rights and the most valued by civilized men," according to Supreme Court Justice Louis Brandeis.

Our nation's founders understood that protection from government snooping on our person, our papers, our beliefs, and our associations was a cornerstone of liberty. But that bedrock understanding has been eclipsed. Congress has allowed inflated fears of terrorism to justify unprecedented encroachments on Americans' privacy, from the 2001 USA Patriot Act right up to the cybersecurity legislation the U.S. House of Representatives shoe-horned into the must-pass budget bill last month.

Representative government requires robust protection of privacy to encourage citizen participation, petition, and censure. Who will dare to criticize the government if fearful of retaliatory actions based on dossiers assembled from indiscriminate surveillance? Retaliation could find expression in disclosures of embarrassing information, withholding benefits, audits, criminal investigations, or politically-driven prosecutions.

Then-Attorney General Robert Jackson warned as long ago as 1940: "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."

In 1761, James Otis denounced British Writs of Assistance which empowered every petty British official to rummage through the homes or businesses of the colonists in search of contraband or smuggled goods. He remonstrated: "It is a power that places the liberty of every man in the hand of every petty officer." John Adams later chronicled: "Then and there the child of independence was born."

The right to be let alone was enshrined in the Fourth Amendment. It prohibits searches and seizures unless justified by a warrant issued by a neutral magistrate based on probable cause to believe that the place to be searched or the person to be seized is implicated in crime. Even in the narrow circumstances where the Supreme Court has permitted warrantless searches or seizures, they still must be "reasonable."

Privacy laws enacted by Congress decades before the Age of the Internet are obsolete.

Additionally, the Supreme Court's "third-party" doctrine, fashioned in the 1970s to excuse warrantless searches of business records, is an anachronism. The doctrine holds that information voluntarily shared with private entities, like deposits with banks or dialed phone numbers with phone companies, is denuded of Fourth Amendment protection. But in today's electronically-enhanced world, all of our most sensitive information - including our location, our associations, our communications, and our Internet searches -are stored on third-party servers. Under the third party doctrine, this information becomes easily available to the government. Personal papers once zealously protected by the law while sitting on our desks are no longer adequately protected from the prying eyes of government.

The foreign intelligence capabilities the United States developed to protect us from Cold War enemies have now been turned inward against ourselves in the pursuit of potential terrorists-in-embryo. A whistleblower's revelations of the scope of the National Security Agency's domestic spying--doing what congressional overseers should have done-awakened Americans to the societal harms of mass surveillance. Studies documented journalists unwilling to write or speak on controversial topics, and ordinary Americans curtailing their religious practices and online searches after learning that the government was watching or listening. We act and speak differently in the de facto presence of the NSA or FBI. Mass surveillance is censorship by other means.

Even members of Congress who enabled the expansion of domestic spying express shock at its present scope, especially when they found their own communications have been monitored.

The post-9/11 encroachments on privacy have not yielded more security. President Obama selected a review group to examine the NSA programs and to recommend reforms. It found that bulk telephone metadata collection "was not essential to preventing attacks," and concluded that enhancing privacy protections were "indispensable" to strengthening security. Continuing breaches of government servers by foreign hackers have further exposed the government as an unreliable steward of sensitive information.

The perception of terrorist threats to the United States evolved as Middle East conflicts intensified, and the movement for privacy reforms stalled. Intelligence officials and prosecutors assailed companies that sought to satisfy consumer demand for encryption to secure their private communications and data. By enhancing privacy protection, the companies were accused of aiding criminals and terrorists with little evidence forthcoming from the government that encryption is frustrating criminal or terrorist investigations in any meaningful way.

Congress continues to make the problem worse. Just last month, the House of Representatives used a slick procedural maneuver to erase the few privacy protections that remain over our online data. The Cybersecurity Information Sharing Act passed largely unnoticed in a 2000 page, eleventh hour, "omnibus" spending bill. Experts agree it will do nothing to improve Internet security while rolling the dice with privacy. Objections were voiced by privacy advocates, tech companies and security professionals. But House Speaker Paul Ryan turned a deaf ear. 

Americans from both sides of the political spectrum want privacy. The Constitution demands it. American companies are eager to provide it. Technology will be part of the answer as companies foreign and domestic seek to meet the public demand for data security.

But the law must also change. An election year is the best time to make sure our voices are heard on matters of public policy. It is time we reclaim the courage of our ancestors, and demand accountability from our government. Updating privacy laws to protect our electronic records, and reforming the third party doctrine by statute or litigation to reestablish Fourth Amendment protection over personal information wherever we store it are essential steps toward creating true security in the digital era.

Bruce Fein is a Constitutional Lawyer and Author

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