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June 7, 2013

On Data Privacy, We've Been Here Before


So we’ve had fairly dramatic confirmation that if Congress gives the federal government expanded police powers to collect massive amounts of information on innocent Americans citizens without respecting Fourth Amendment restrictions, the federal government will do exactly that.

What we know right now is that comprehensive records of every single phone call made on the network of at least one major communications provider are being provided to the federal government, without respect to whether anyone is suspected of anything.

It has also been alleged that Internet traffic, including ecommerce transactions, are being collected.

It’s nothing new for the federal government to want to expand its police powers over the lives of ordinary Americans. In the late 1990s, one of the biggest policy debates was encryption—specifically, whether Americans would be allowed access to encryption and what powers the federal government would have to access your encrypted information. The issue then was preventing domestic crime and spying, not terrorism, but federal law enforcement agencies made the same arguments then that we hear today.

It was absolutely necessary, claimed the Clinton administration, that federal law enforcement agencies have the ability to access encrypted files. Otherwise, criminals would be able to communicate without fear of interception. According to the federal government, the need to battle drug trafficking, child pornography and espionage meant that Americans could not be permitted unfettered access to encryption.

The Clinton administration proposed mandating that every device would include a “Clipper Chip,” which would be a government defined and government controlled technology standard, guaranteeing it backdoor access to your encrypted files. The public rebelled at this proposal, correctly identifying it as a violation of Fourth Amendment protections. Several subsequent proposals were also defeated, most notably the idea that the federal government would retain access to your encryption key through “key escrow.”

It’s certainly true that encryption can be used to evade the law, but in the give-and-take of the encryption debate we remained squarely within the American tradition of guaranteeing freedom and privacy rather than tilting toward a police state. In the encryption wars, freedom won.

Today, while the issue is terrorism, the debate is the same: The federal government seeks greatly expanded police power to combat threats. But this time, our policy makers made the wrong decision. They granted the federal government the power to gather private information from American citizens without distinguishing between those few suspected of wrongdoing and the vast majority of innocent citizens.

The purpose of the Fourth Amendment is to counter this inexorable tendency toward expanded police power for government. If our elected officials, who are supposed to be guardians of our freedom first of all, grant expanded police powers to the federal government in violation of their oath to preserve and protect the Fourth Amendment, the Feds will use them.


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