Since 9/11, privacy has been an endangered species in the United States. But now there’s political will to conserve our privacy and roll back a surveillance state that sought to make privacy extinct.
Only 45 days after the terrorist attacks, Congress hastily passed the Patriot Act, which gave the government unprecedented authority to intrude into the lives of its citizens in its hunt for terrorists.
Section 215 of the law, known as the “business records” provision, was particularly alarming because it allowed the government to obtain “any tangible thing” — such as financial, library and phone records — relevant to a terrorism investigation, even if the records didn’t pertain to suspected terrorists or terrorist activities. It was a provision ripe for abuse, which the Bush and Obama administrations exploited. Yet few members of Congress said they read or even understood the legislation before voting on it.
Fear strangled a debate we needed to have.
For well over a decade, the American Civil Liberties Union made it a point to tell the American public about the inadequate checks and balances in the broad powers granted to law enforcement and anti-terrorism agencies by the Patriot Act. We cited several problems with the Patriot Act beyond Section 215. The law operated in secret, so there was no way that Congress or the federal courts could adequately ensure that Americans’ privacy rights were protected. It encouraged secret investigative fishing expeditions, which produced information that the government could share with other law enforcement agencies, including state and local agencies, without ever notifying the targets that they were under investigation. The law even could have been interpreted to permit the government to monitor email content without probable cause of a crime.
But those who were troubled by the Patriot Act didn’t have the smoking gun needed to alert Americans to just how invasive the law really was. Without it, Congress reauthorized the law or its most controversial provisions three times. But last summer, Edward Snowden confirmed what many had suspected: The FBI and the National Security Agency had been using the Patriot Act, and Section 215 in particular, to engage in dragnet surveillance of the American people by collecting their phone records in bulk and without any suspicion of wrongdoing.
The debate civil libertarians and privacy advocates craved on government surveillance was now possible, and that debate has been raging for the past year as Americans learned the abuses didn’t stop at the bulk collection of their phone records. With each Snowden revelation, a fuller picture emerged of a government trying to make privacy obsolete, even at the risk of undermining global encryption standards, which protect our sensitive data from other intelligence agencies as well as criminal syndicates and hackers.
Americans, as well as their representatives, are beginning to realize once again that security is a multidimensional concept and that privacy is one of its components. After 9/11, security for most Americans meant protection from external threats. But because of the Snowden revelations, Americans are remembering once again the other kind of security we sought by ratifying the Bill of Rights, and its Fourth Amendment in particular. It also didn’t help the government that the phone records program failed to detect even one terrorist plot against the United States, according to the president’s own review panels who investigated the program. This proved we didn’t have to give up liberty for security. It was a false choice all along.
Members of Congress clearly see now that we have strayed too far from our democratic values by building a shadow government that issues secret interpretations of the law approved by a secret court.
The House of Representatives has passed a bill addressing these surveillance activities. The initial bill was strong and represented meaningful reform, but the administration pushed to significantly water down the legislation, and this weakened draft was what passed.
However, the House blocked consideration of a measure championed by the House Permanent Select Committee on Intelligence that would have enshrined “bulk” surveillance in law. By doing so, the House gave the Senate a platform on which to build. Civil libertarians and privacy advocates, including the ACLU, will fight tooth and nail to secure improvements to the House-passed bill in the Senate to finally give the American public the surveillance reform it deserves.
But Congress isn’t stopping there.
More than 210 members of the House have signed on to the Email Privacy Act, a legislative reform proposal that would bring Americans’ privacy protections into the digital age. Under the Electronic Communications Privacy Act, any electronic communication that sits on a company’s server for more than 180 days is considered junk and can be accessed by police without a judge’s permission. The law was originally passed in 1986, when people had to download their emails to their personal computers because of online storage constraints. In an age of cloud computing and Gmail, the act’s 180-day rule has allowed law enforcement to gain access to our most intimate electronic information without going to a judge and getting a warrant.
That loophole, however, could be closed soon because the Email Privacy Act requires police to get judicial warrants before accessing all digital content — such as emails, cloud documents and pictures — regardless of their age. Police need probable cause before they can open your mail or rifle through your desk drawers, so it makes sense that those protections keep pace with the technology that all Americans have come to rely on in their personal and professional lives.
It took nearly 12 years for Americans to get the honest debate they deserved on the intersection between national security and civil liberties. Now that we’re having it, more and more Americans are coming once again to the realization that the Fourth Amendment isn’t a relic of the past. It’s a protection needed more now than ever.
• Laura W. Murphy is director of the American Civil Liberties Union’s Washington legislative office.