Some may trust the good folks at the NSA to have this information, but would they trust the IRS with it? Would we trust the United Kingdom and other allies with that information (now that it has been reported that the information was shared?). People in the digital community know that once something exists in data form, it almost never goes away. It will exist somewhere, forever.
Further, there is the reality of today’s unprecedented administrative state. A nation where the government is able to obtain private and potentially incriminating information relating to all of its citizens is a nation that can selectively target individuals for prosecution — especially given some of the sweeping legislation on the books. Some courts have even held that violating the terms of service for a website is a violation of the Computer Fraud and Abuse Act (CFAA) — meaning that, for example, until recently every Google user under the age of 18 was a potential felon, since that site’s terms of service banned its use by minors.
Thus, because the natural inclination of government is to abuse its power, we need to update and fully flesh out traditional conceptions of privacy in a 21st-century context.
Courts have ruled that modern communication tools effectively bypass the Fourth Amendment. Under these rulings, our telephone data — whom we call and how long we are connected — are not considered to be under traditional Fourth Amendment protection (through something called the Third Party Doctrine, which holds that knowingly disclosing information to a third party — in this case, an Internet service provider — abrogates that protection). By the same reasoning, our e-mails are generally considered unprotected as well (though there is some ambiguity here in case law). It is up to Congress to fix this situation by passing new laws to protect our civil liberties. And as technology advances, it will have to periodically update these laws to force federal agencies to respect the people’s right to privacy in new situations.
Passing new laws to update privacy for the 21st century is the conservative position. It would conserve the traditional notions of privacy espoused by our Founding Fathers in the context of the modern world. Conservatism doesn’t mean that privacy is limited to 18th-century technologies because that was what was available when the Constitution was written — that’s a silly perspective. What would there be to conserve if as society develops the new technology somehow bypasses all the protections and restrictions written in the Constitution?
PRISM may or may not violate the Fourth Amendment under current court precedents, and it is clearly an abuse of power by the Obama and Bush administrations, but those are not the operative questions. Thus the solution is not merely to chastise the president for using all the tools at his disposal to stop terrorism, but for Congress to establish new protections of civil liberties. We can start with a simple premise: If the government wants to read a letter I have written, it needs a warrant; if it wants to read my e-mail, it ought to get a warrant too.
“Liberty means responsibility,” wrote George Bernard Shaw. “That is why most men dread it.”
— Derek Satya Khanna is a Yale Law Fellow and can be reached at @DerekKhanna and Facebook.com/derekkhanna. He was a congressional staffer in both the House and the Senate, and is part of the coalition that launched www.stopwatching.us/.