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October 5, 2016

Gross Violations of Fourth Amendment Right to Electronic Privacy

 

When it comes to arguing for strong Fourth Amendment rights to electronic privacy, news stories this week are making our case for us.

As far back as 2002, I wrote that when government agencies are allowed to amass databases of personal information on American citizens, we should not accept government assurances of privacy, because your privacy would “only be as good as the most disgruntled employee with access to the database.” Government agencies are simply not able to fulfill these privacy promises, even if they are of a mind to, because they are composed of various kinds of people with varying levels of integrity.

Just this afternoon we have learned that another NSA contractor has been arrested and charged with theft of government property and “unauthorized removal of classified materials.” We haven’t been told what was taken, and it’s possible that the government itself doesn’t yet know. But it’s another case of the NSA not being able to guarantee security at perhaps the federal government’s most sensitive, most secure agency.

Now, in this case, it may not be that personal information on American citizens has been breached, but the concern is very real, since just yesterday we learned that Yahoo has been giving federal security agencies access to its customers email, scanning emails at the agency’s direction.

How many of these kinds of violations are going to be revealed before our elected officials in Washington finally act to limit the appetite of the federal government for access to our digital papers and effects?

The Founders wrote the Fourth Amendment to specifically protect American citizens against data seizures by their federal government. Realizing that government has specific and unusual powers, the Founders were more concerned about protecting Americans from their government than they were about protecting Americans from each other.

That’s why the current practices of the federal government in this area are so offensive—they are a direct and obvious violation of the Fourth Amendment. And it’s more offensive that Congress and the president have failed to act to rein in these violations.

One helpful legislative effort, the Email Privacy Act, has an extraordinarily broad and bipartisan base of support, with 314 co-sponsors. But did it pass in this Congress? No—it’s being held up almost single-handedly by Texas Senator John Cornyn, who clearly lacks adequate sensitivity to the Fourth Amendment rights of American citizens.

The federal government simply cannot be trusted with access to our personal digital information outside of Fourth Amendment-access restrictions. The Founders knew this. Why doesn’t Senator Cornyn?


 

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