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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

(Photo: Think­stock)