What is Internet Privacy? Tweaking the Constitution

Michael From our Perspective

The futuristic thriller, 1984, written by George Orwell was published in 1949. In it, Orwell created a world in which no one is safe. Thought police watched your every move from strategically placed televisions, children turned in their parents for being traitors, the world was trapped in perpetual war, and the government- mainly the Inner Party- controlled every facet of everyday life including the people’s thoughts.

It’s a Cliche for a Reason

I doubt there is a writer alive who hasn’t made some reference to 1984 when talking about the current state of privacy. In fact, it is done so much it has become slightly cliche and redundant. With that being said, the same feelings that Big Brother instills into the readers is tangible in today’s society. However cliche it might be, the novel still finds relevance more than 60 years later.

Changing the Precedence

To understand why the laws passed since September 11 are dangerous you need to understand the laws that the USA PATRIOT Act, the Protect America Act of 2007, and FISA Amendments Act of 2008 changed. Mainly the Stored Communications Act of 1986, the Electronics Communication Privacy Act of 1968 (ECPA), and the Foreign Intelligence Surveillance Act of 1978 (FISA).

Since their inception, the bills that the USA PATRIOT Act altered stood wholly unchanged. They were effective because they allowed the NSA and other agencies to do their job while still protecting Americans’ privacy.

Of these, FISA is perhaps the most important. The year that FISA was introduced should give you some clue as to what it pertains to: the Watergate Scandal. If you are unfamiliar with this part of American history (maybe you shouldn’t have skipped American history so much, huh?), it relates to an extensive operation and subsequent cover-up of government corruption involving surveillance. In short, it was revealed that President Nixon used the powers of his executive office to conduct surveillance on his democratic opponents through federal agencies such as the FBI, CIA, and NSA .

Four years after his resignation, the Foreign Intelligence Surveillance Act was passed in direct response to what had transpired over the previous 7 years. FISA’s main purpose was to gain foreign intelligence information and limit surveillance to foreign agents and governments that are known to be hostile to the United States. It required law enforcement to obtain a search warrant based on probable cause from a third party (the FISA court or FISC) before detaining the person or conducting a search of someone’s home or place of business. FISC has always operated under complete secrecy due to national security concerns.

The Tweaking of the Constitution with the USA Patriot Act

In late 2001, while the dust was still settling around the twin towers the USA PATRIOT Act was introduced. In 3 days it was signed into law. The Patriot Act is not a law in and of itself, but actually a collection of amendments to the aforementioned long standing laws.

Politicians, who are opportunistic if nothing else, saw this (the fear caused by 9/11, as well as laws being unchanged for thirty years) and seized the chance. President Bush and proponents of the Patriot Act and later bills argued that the long standing laws were outdated. Before advocacy groups could sound the alarm about the potential hazard of the loss of privacy the bill was already passed. The USA PATRIOT Act was introduced to congress and signed into law within a week. The reason for the rush job? Politicians knew, that once there was a precedence of protecting privacy online that it would be incredibly difficult to walk that back. So they had to create a precedence in their favor.

The main way in which the Patriot Act destroyed what the FISA created is by removing the statutory requirement that a target of surveillance is non-US citizen and agent of a foreign power. This completely removes the key motive behind the law that stood virtually unchanged for nearly 30 years. However, it did require that investigations not be conducted on citizens who are protected by the First Amendment- although that is not adhered to because of the NSA’s dragnet capturing such an extraordinary amount of information on pretty much everyone.

Another key way in which the Patriot Act degraded privacy is by introducing “sneak and peek” search warrants (more officially called delayed notice search warrants). These warrants do not require notification of the suspects before the search of a business or home and allows the NSA, FBI, and others to conduct electronic surveillance nearly indefinitely.

The amendment sets a low bar for the acquisition for this type of warrant as well as allowing photographs to be taken, the seizure of physical property, and the collection of electronic communications  all without the victim knowing- clearly a violation of the Fourth Amendment. Furthermore, the amendment isn’t even restricted to terrorist investigations. EFF told Vice News in November of 2014 (emphasis mine):

Of the 11,129 delayed-notification search warrants requested in the US in 2013, only 51 were for terrorism investigations, the EFF analysis shows. That’s 0.5 percent. For narcotics cases, officials last year requested 9,401 sneak and peek warrants, or 84 percent of the total.

Six years later, in August of 2007, Congress passed the Protect America Act that also heavily modified FISA. However, the bill was written to sunset after six months, and it did expire in February (except for some parts which could continue to be used in ongoing cases). However, in June of 2008 Congress passed the FISA Amendments Act of 2008.

Not only did the FISA Amendments Act grant broad retroactive immunity to telecommunication companies for breaking the law (including the First and Fourth Amendment) by complying with warrantless wiretapping. This act further limited judicial oversight and expanded the use for roving wiretaps.

The Same Routine- a New Analogy for the Patriot Act

Instead of using 1984 as a constant analogy I would like to propose another, far more modern, comparison. Climate change. For generations we have constructed factories that pumped harmful chemicals into our atmosphere and adopted policies that dumped pollution into our environment. It wasn’t until recently that we realized the harm we were causing to ourselves. And look at us: bal- er- knee deep in petroleum (and other incredibly harmful enviromental habits). Now, far too late, we are just beginning to change how we see our effect on the environment. On top of this, despite irrefutable evidence and a near unanimous scientific consensus that global warming is real- and caused by humans, there are still people, educated people, in power who deny it; who say not to worry about it, that it isn’t a problem.

If this isn’t a representation of the ongoing privacy struggles then I don’t know what is.

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