Modern field guide to security and privacy

Opinion: A bold move in Congress to protect privacy

Members of Congress on Wednesday launched the Fourth Amendment Caucus to defend privacy in an era of increasingly pervasive surveillance.

Lucy Nicholson/Reuters

On Wednesday, more than two dozen congressional representatives announced the formation of the Fourth Amendment Caucus, an incredibly important group dedicated to defending our right to privacy.

At a time when many in Congress are falling all over themselves to increase privacy-invasive surveillance, the bravery of these lawmakers to form a coalition to buck that trend is well worth commending.

Caucus cochairs Reps. Ted Poe (R) of Texas and Zoe Lofgren (D) of California have opened a new front in the fight against the dangerous mission creep of ever-increasing government surveillance; Rep. Justin Amash (R) of Michigan has consistently prevailed in raising public awareness about the dangers of new surveillance laws in the face of withering fearmongering; and Rep. John Lewis (D) of Georgia Lewis was himself spied upon because of his work in the Civil Rights Movement.

These Congress members and their colleagues on both sides of the aisle are establishing the Fourth Amendment Caucus because they understand that reclaiming our right to privacy is essential during this trying time in our nation’s history.

The sad reality is that in America today, people no longer need to be suspected of a crime to be placed under surveillance. At every level of government, including the president’s office, officials have argued that they can collect records of every phone call, credit card purchase, and trip you’ve ever made. These officials have argued that listening to your phone calls and reading your emails without a warrant are legal – so long as those communications were at some point stored outside the US.

Of course, given the global nature of the Internet and cloud computing, we often have no control over where our data is stored, processed, or backed up; so US government claims that it can access all this information without first getting a warrant is, essentially, a blanket mandate to surveille everyone’s most private information.

These claims have been made by the executive branch in court and are borne out by the government’s everyday surveillance practices. As we write, the FBI is demanding that Congress grant them the ability to collect Americans’ web browsing history with nothing more than a so-called “National Security Letter,” which they can self-issue without judicial review.

But overly broad surveillance is not the only current threat to our constitutional rights – current court practices are undermining the very rule of law that is the foundation of American democracy. As just one example, some officials now claim that they should be allowed to mislead courts and defendants about how evidence is collected – where it comes from, and who collected it – a practice called “parallel construction.”

Put simply, when engaging in “parallel construction,” federal agents and prosecutors lie about or conceal evidence used against a defendant, pretty much guaranteeing that those defendants are unable to have a fair trial where they are able to question how evidence was actually collected. Such practices belong in Franz Kafka books – not a free and democratic society.

Creating processes that attempt to legalize the use of “secret evidence” collected via secret programs that are then hidden from defendants is an unacceptable and incredibly dangerous precedent. Americans know this. That’s why the Department of Justice has systematically mislead the courts about how it provides notice to defendants, including to the Supreme Court, in order to avoid exposure of this potentially widespread practice.

In the 1960s, the FBI engaged in nationwide and illegal surveillance of everyone from the women’s rights movement to the NAACP. Heroes such as Martin Luther King were considered dangerous enemies and feminists and peace activists were labeled “extremists.” We found the courage to reverse course once these illegal surveillance practices were exposed, and now we face a similar crisis – one that necessitates reining in overbroad government surveillance once again.

In the interim, the damage has already been extensive. Fear of government surveillance is not just causing people to change their online habits in China and Iran – the Pew Research Center (and others) have already documented significant and growing evidence that tens of millions of Americans have censored themselves in response to the US government’s suspicionless surveillance, including those who believe they have nothing to hide.

Current surveillance practices undermine privacy and are at odds with the Fourth Amendment, which states clearly that “[t]he 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.”

This right to privacy is all the more necessary given the incredible reach of today’s technologies and the growing evidence that surveillance and unwarranted suspicion specifically target communities of color. The Fourth Amendment Caucus reminds us that surveillance, where necessary, serves to defend our constitutional rights and that abrogating the constitution to support surveillance is inherently self-defeating.

History will remember this group of representatives as the leaders who refused to give in to fear and chose instead to defend our civil liberties and inalienable rights to life, liberty, and the pursuit of happiness.

Sean Vitka is director of the Fourth Amendment Advisory Committee; Sascha Meinrath is president of the Fourth Amendment Advisory Committee Board and Palmer Chair in Telecommunications at Penn State University.


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