Since Sept. 11, the war on terror has been invoked by the federal government to justify a vast program of expanded executive authority and a comprehensive erosion of civil liberties. Important statutory and constitutional safeguards have frequently been either entirely disregarded or significantly weakened.
One of the most significant casualties in the endless war against terrorism is the Fourth Amendment, which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The National Security Agency’s warrantless wiretapping program has thus far been the most prominent infringement on the Fourth Amendment. Two new proposed measures — one targeting the Internet, the other focused on the financial industry — threaten to dramatically expand the federal government’s surveillance capabilities in direct disregard of the amendment’s limitations.
The first measure, a bill that the Obama administration intends to submit to Congress next year, would require all communication services to include technical features permitting the service to comply with a federal wiretap order. The bill primarily targets services such as Blackberry, Facebook and Skype, which either involve peer-to-peer messaging or encrypted communications.
The legislation would require all communication channels to include a built-in “backdoor” through which the government could intercept any transmission. Government already has the means to spy on encrypted communications through end-user surveillance methods, such as keyloggers installed secretly on suspects’ computers. The net effect of the “backdoor,” then, would be to allow the government to collect and sift through communications in bulk.
The second measure, also proposed by the Obama administration , would require U.S. banks to report to the government all electronic money transfers into and out of the country. The size of the transfer would not affect reporting requirements. The transfer data (about 750 million such transfers occur each year), accompanied by the social security numbers of the sender and recipient, would be stored in a centralized federal database.
Both of these proposals are indicative of several disturbing characteristics of the federal government’s approach, since the inception of the war on terror, to collecting and analyzing private data. First, data collection that allows for high-volume surveillance necessarily abrogates Fourth Amendment protections, since it is impossible to acquire warrants on such an enormous scale.
Second, the collection of enormous quantities of data is rarely justified with anything other than a vague reference to the threat of terrorism. An important benefit of requiring law enforcement authorities to acquire a warrant is that it forces those who would eavesdrop on the affairs of others to provide a compelling justification for doing so. By justifying data collection on a macro level, the government entirely sidesteps the requirement of justifying surveillance on an individual level.
Legislative schemes such as these pose a grave threat to the value of privacy that the Fourth Amendment enshrines. The preservation of privacy is essential to a society that values liberty; individuals in a democratic republic have the right to be free from constant government intrusion into their personal lives. In America, the citizens are the masters of the government, not vice-versa. Government simply has no authority to access unlimited private data, at will, without justification.
Apart from its value as a component of liberty, privacy is also desirable to the extent, for instance, that it encourages political discourse unhampered by fear of government reprisal. Unlimited surveillance powers could easily be used by the government to target political opponents. Even in the absence of such direct abuse, however, knowledge that every communication is laid bare to the prying eyes of the government inevitably quells free expression, thus discouraging citizens from engaging in legitimate political speech for fear of political retribution.
The Fourth Amendment provides a reasonable balance between the competing interests of liberty and security, preserving the majority of citizens’ privacy but allowing government surveillance when compelling justifications are present. There is no reason that the traditional, court-approved warrant system could not be applied to internet data. By eschewing such constitutional limitations, broad and unchecked surveillance programs cede too much authority to government to delve into citizens’ personal lives.
The legislation also raises systemic issues apart from those directly related to privacy. Due process and other structural safeguards are the most effective legal mechanisms to restrain would-be tyrants. Those who would provide government with unhampered access to personal data naively overlook the fact that, without structural restrictions on executive power, no means exist to prevent unscrupulous leaders from employing such vast authority to serve corrupt ends.
The American Constitution is largely premised on the belief that, in the absence of proper safeguards, the government itself poses as great a threat to our liberty as any external enemy. This fundamental insight must guide our debates about the proper sphere of governmental authority lest, in our haste to preserve our safety by any means necessary, we surrender our freedom to tyrants. Legislation such as that proposed by the Obama administration may have been common in Communist East Germany, but it has no place in the United States.