- - Monday, May 30, 2016


Privacy and the security of letters and papers were once regarded as the inviolate rights of free men, even sometimes guarded to foolish lengths. On the eve of Pearl Harbor in 1941, Cordell Hull, the secretary of State, rebuked the interception of communications between Japan and its embassy on Massachusetts Avenue in Washington. “Gentlemen,” he said, “don’t read the mail of other gentlemen.” Mr. Hull erred in mistaking evil men for gentlemen.

Now the government goes to foolish lengths to plunder the privacy of all, including gentlemen. The government agents who collect and store as much data as they can find often ignore the safeguards of the Fourth Amendment. When the government feels a public backlash over a seizure of too much power, it retreats a step backward — only to try again when the tempest abates, and then takes two steps forward.

Last week that the Senate Intelligence Committee adopted a secret codicil to this year’s authorization that, if it becomes law, will enable government investigators to collect email data without a warrant merely by writing a letter demanding it. The FBI thought it could do something like this, too, until it was told it couldn’t by the George W. Bush Administration, a rebuke endorsed by Congress after the Justice Department’s inspector general discovered that the FBI was writing letters — called National Security Letters — with demands supported by weak evidence to collect information in a way that “implicated the target’s First Amendment rights.”

Having failed to get Congress to grant the right after public debate, the FBI is trying another end run, seeking authorization as part of a classified authorization that will avoid public scrutiny.

The agents and their lawyers proposing such data collection have no evil intent; they’re just human, attempting to exploit the human desire to make their jobs easier. They forget that sometime somewhere someone will get the information and misuse it regardless of good intentions, promises and institutional safeguards. Those obsessed with security over all must understand that the quest for more snooping power nearly always leads to bad ends.

It’s the fear of this misuse of data and information that lies behind the gun owner’s hostility to federal firearms registries. It explains why so many supported Apple for refusing to help the FBI break the security code on its smart phones. Deep in their DNA Americans know that no good is likely to come from a federal government that says it needs to know everything there is to know about every American.

The government is always eager to intimidate reporters, but until now the agents have been reluctant to try to intimidate members of Congress. The Department of Homeland Security tried to intimidate Rep. Jason Chaffetz, Utah Republican, who was investigating misconduct within the agency. Last week the Secret Service announced the suspension of 41 employees for leaking confidential files on Mr. Chaffetz to The Washington Post. Nobody was fired, not yet, but trying to intimidate a member of Congress is never a good idea.

This incident was “embarrassing” to the Secret Service, and it should stand as a warning to Congress that any grant of more power to a federal agency comes with a risk. Eternal vigilance is the price of liberty, and nobody, not even a spook, knows who’s looking.

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