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July 23, 2014

Restoring Our Lost Liberty on the Internet

 
In his important book Restoring the Lost Constitution: The Presumption of Liberty, professor Randy Barnett says, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty.” Within this presumption of liberty is the right to privacy, exactly the kind of unenumerated right that the Ninth Amendment was intended to protect.

The Founders were committed to liberty and thus distrusted government, so they demanded it operate within a strict set of limits. Their clear expectation of the right to privacy is reflected not only in the wording of the Declaration of Independence, but also in the design of the Constitution, most especially the Fourth Amendment, which states:
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.
It’s disturbing, then, that so many who claim to believe in limited government and the Constitution suspend their principles when it comes to law enforcement and the NSA’s spying on the electronic communications, web searches and financial transactions of American citizens without probable cause and a specific warrant.

But the NSA is only the tip of the iceberg: Existing legislation gives scores of federal agencies, including the IRS, loopholes through which they can access your electronic communications without obtaining a specific warrant.

Of course, in the analog world, courts have carved out reasonable exceptions to a strict warrant requirement for certain circumstances, and it’s reasonable to have such exceptions in the digital world as well. But Americans should have a general expectation of privacy that extends to our electronic devices and communications, and thus Congress needs to update the legislation that governs such communications.

That legislation is the 1986 Electronic Communications Privacy Act (ECPA), which predates the World Wide Web and the proliferation of cell phones. But it’s the recent outrageous violations of our privacy by the NSA that have thrown the need to update ECPA into sharp relief.

An updated ECPA should:
  • Require a specific warrant anytime law enforcement wants to obtain access to a citizen’s data transmissions, including location data.
  • Focus proper scrutiny on government’s access to and treatment of private data instead of focusing almost exclusively on private sector actors.
  • Make only reasonable exceptions, following precedent in the analog world. In other words, digital property and communications should not be treated as less private than analog “houses, papers and effects.”
Protecting Americans’ electronic privacy against government violations is a bipartisan issue, and could give incumbents of both parties something to brag about in the weeks prior to the election. Restoring Americans’ lost liberty on the Internet should be a priority for any elected official who swears to bear true faith and allegiance to the Constitution—in other words, for all of them.

 

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