Congress or the courts should put a stop to these unreasonable data seizures.
By Randy Barnett
Due largely to unauthorized leaks, we now know that the National
Security Agency has seized from private companies voluminous data on the
phone and Internet usage of all U.S. citizens. We've also learned that
the United States Foreign Intelligence Surveillance Court has approved
the constitutionality of these seizures in secret proceedings in which
only the government appears, and in opinions kept secret even from the
private companies from whom the data are seized.
If this weren't disturbing enough, the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank
financial reform, is compiling a massive database of citizens' personal
information—including monthly credit-card, mortgage, car and other
payments—ostensibly to protect consumers from abuses by financial
institutions.
All of this dangerously violates the
most fundamental principles of our republican form of government. The
Fourth Amendment has two parts: First, "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." Second, that
"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."
By banning unreasonable "seizures" of a
person's "papers," the Fourth Amendment clearly protects what we today
call "informational privacy." Rather than seizing the private papers of
individual citizens, the NSA and CFPB programs instead seize the records
of the private communications companies with which citizens do business
under contractual "terms of service." These contracts do not authorize
data-sharing with the government. Indeed, these private companies have
insisted that they be compelled by statute and warrant to produce their
records so as not to be accused of breaching their contracts and
willingly betraying their customers' trust.
As other legal scholars, most notably Yale law professor Akhil Reed
Amar, have pointed out, when the Fourth Amendment was ratified in 1791
as part of the Bill of Rights, government agents were liable for damages
in civil tort actions for trespass. The Seventh Amendment preserved the
right to have a jury composed of ordinary citizens pass upon the
"reasonableness" of any searches or seizures. Because judges were not
trusted to jealously guard the liberties of the people, the Fourth
Amendment restricted the issuance of warrants to the heightened
requirements of "probable cause" and specificity.
Over time, as law-enforcement agents were granted qualified immunity
from civil suits, it fell mainly to judges to assess the
"reasonableness" of a government search or seizure during a criminal
prosecution, thereby undermining the original republican scheme of
holding law enforcement accountable to citizen juries.
True, judges have long been approving search warrants by relying on
ex parte affidavits from law enforcement. With the NSA's surveillance
program, the Foreign Intelligence Surveillance Court has apparently
secretly approved the blanket seizure of data on every American so this
"metadata" can later provide the probable cause for a particular search.
Such indiscriminate data seizures are the epitome of "unreasonable,"
akin to the "general warrants" issued by the Crown to authorize searches
of Colonial Americans.
Still worse, the way these programs have been approved violates the
Fifth Amendment, which stipulates that no one may be deprived of
property "without due process of law." Secret judicial proceedings
adjudicating the rights of private parties, without any ability to
participate or even read the legal opinions of the judges, is the
antithesis of the due process of law.
In a republican government based on
popular sovereignty, the people are the principals or masters and those
in government are merely their agents or servants. For the people to
control their servants, however, they must know what their servants are
doing.
The secrecy of these programs makes it impossible to hold elected
officials and appointed bureaucrats accountable. Relying solely on
internal governmental checks violates the fundamental constitutional
principle that the sovereign people must be the ultimate external judge
of their servants' conduct in office. Yet such judgment and control is
impossible without the information that such secret programs conceal.
Had it not been for recent leaks, the American public would have no idea
of the existence of these programs, and we still cannot be certain of
their scope.
Even if these blanket data-seizure programs are perfectly proper now,
the technical capability they create makes it far easier for government
to violate the rights of the people in the future. Consider why gun
rights advocates so vociferously oppose gun registration. By providing
the government with information about the location of private arms, gun
registries make it feasible for gun confiscation to take place in the
future when the political and legal climate may have shifted. The only
effective way to prevent the confiscation of firearms tomorrow is to
deprive authorities of the means to do so today.
Like gun registries, these NSA and CFPB databanks make it feasible
for government workers to peruse the private contents of our electronic
communication and financial transactions without our knowledge or
consent. All it takes is the will, combined with the right political
climate.
Congress or the courts must put a stop to these unreasonable blanket
seizures of data and end the jurisdiction of the Foreign Intelligence
Surveillance Court to secretly adjudicate the constitutionality of
surveillance programs. Both practices constitute a present danger to
popular sovereignty and the rights retained by the people.
Mr. Barnett is a professor of constitutional law at
Georgetown University and the author of "Restoring the Lost
Constitution: The Presumption of Liberty" (Princeton University, 2005).
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