Protecting our Digital Privacy

One of the biggest questions currently facing our nation is how to balance our right to privacy guaranteed under the 4th Amendment with the need to keep our country safe.

We haven’t, and never will, forget the terrorist attacks on September 11.  The culture of fear fueled by these attacks is still very real and leads many to push for more robust national security measures.  One way the U.S. government has done this is by increased surveillance, not only of suspected terrorists but of everyday citizens as well.  Amid last year’s revelations by Edward Snowden of NSA spying, lawmakers in Washington have opened up this discussion and started to try to figure out where the balance between security and privacy lies.

First came the USA Freedom Act.  Passed by the House of Representatives on May 22, this bill strives to end bulk collection of Americans’ communication records, reform the Foreign Intelligence Court, and increase transparency for citizens.1  While there is debate among privacy advocates about whether the version of this bill that passed the House actually accomplishes reform, it’s at least a recognition that there’s a problem and a start towards solving it.  Now, the House of Representatives is considering a bill dedicated to protecting the privacy of our electronic communications.  This bill, known as the E-mail Privacy Act or ECPA reform, is sponsored by former T4A convening guest Congressman Kevin Yoder (R-KS-3) and has already garnered the support of 228 cosponsors from both parties.  It reached the magic number of 218, or half of the House of Representatives, on June 17, sending a powerful message to House leadership that the bill would pass if it went to the floor at that moment.2  This law updates the Electronic Communications Privacy Act (ECPA) to require law enforcement agencies to obtain a warrant to access electronic communications.  As it currently stands, the ECPA “allows law enforcement agencies to access electronic communications that have been stored for 180 days without a warrant.”3  The Supreme Court has also decided to take steps in securing electronic information in their recent decision in Riley v. California, in which they ruled “that the police need warrants to search the cellphones of people they arrest.”4  Even Attorney General Eric Holder has gone on record to say that he believes the government needs a warrant before reading our emails.5  Endorsements by public officials and court rulings can only go so far though. We need to do more when it comes to protecting our digital privacy.  Legislation is a great option because it would set a definitive standard rather than leaving it to the executive branch to determine how to enforce and interpret court rulings.

Many people will tell you that they’re okay with these types of surveillance since they know that it’s for national security purposes.  However, much of this ambivalence comes from the assumption that they are not the ones being watched.  Many think “I’m not a terrorist, I’m not doing anything wrong online, so I shouldn’t be worried about this.”  This isn’t true though.  According to a Washington Post article, “Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.”6  The article goes on to say that much of the information collected includes things like medical records, resumes from job hunters, and “scores of pictures [that] show infants and toddlers in bathtubs, on swings, sprawled on their backs and kissed by their mothers.”7  While it’s true that some of the information collected served valuable to national security efforts – including data that led to the capture of a Pakistan-based bomb builder – we are all getting caught in these wide cast nets.  The government has photos of our children and private messages we’ve sent loved ones.  Of course, it’s important that we’re safe but we also need our freedom.  Just as the law enforcement officials cannot search through our home without a warrant, they should not be able go through our online information without probable cause and without our knowledge.  We absolutely have an expectation of privacy in these areas and this privacy should be protected.

This is not a red or blue issue.  As Katie McAuliffe from Americans for Tax Reform puts it when writing about the E-mail Privacy Act: “This is reform that is necessary to ensure Americans’ privacy online is adequately protected and it’s an issue that has vast support across ideological lines, with organizations as diverse as Americans for Tax Reform and the American Civil Liberties Union behind the effort.”8 A common theme of our TechTables is figuring out how  to find common ground and work across party lines – this is a great example of an issue that is ripe for this type of action!  This is something that people on both sides of the aisle agree on and it’s time that we start taking action.

References
1 Congressman Jim Sensebrenner. (n.d.) The USA Freedom Act. Retrieved from http://sensenbrenner.house.gov/legislation/theusafreedomact.htm

2 Tummarello, K. (2014). Bill requiring warrants for email searches hits magic number in House. The Hill. Retrieved from http://thehill.com/policy/technology/209730-house-email-privacy-bill-hits-magic-number

3 Tummarello.

4 Liptak, A. (2014). Major Ruling Shields Privacy of Cellphones. The New York Times. Retrieved from http://www.nytimes.com/2014/06/26/us/supreme-court-cellphones-search-privacy.html

5 Lee, T. (2013). Eric Holder endorses warrants for e-mail. It’s about time. The Washington Post. Retrieved from http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/16/eric-holder-endorses-warrants-for-e-mail-its-about-time/

6 Gellman, B., Tate, J. & Soltani, A. (2014). In NSA-intercepted data, those not targeted far outnumber the foreigners who are. The Washington Post. Retrieved from http://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322_story.html

7 Gellman et al.

8 McAuliffe, K. (2014). We must protect our privacy in the digital age. The Bakersfield Californian. Retrieved from http://www.bakersfieldcalifornian.com/opinion/forum/x634489828/We-must-protect-our-privacy-in-the-digital-age

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