UNREASONABLE Search & Seizure: Why *Don’t* You Care?

The acceleration of the surveillance state accelerated almost immediately in the aftermath of the horrific terrorist attacks on September 11, 2001. There have been so many erosions of our civil liberties that I hardly know where to begin even thinking about this issue, let alone trying to determine why so many of my family, friends, social media connections and colleagues seemingly don’t give a shit and exhibit no outrage.

Remember when President Obama announced the killing of Osama Bin Laden and millions of Americans stood up to cheer? Well I remember that too but continue to hear the echo of rhetoric by government officials and Congressional politicians who have continued to say, “But there hasn’t been another (Al Qaeda) terrorist attack on American soil so see how we have kept you safe!?! Aren’t you pleased at the more than $1 trillion dollars expended on the Dept of Homeland Security and our various wars because you do feel safer now, right?“

I’m with Ben. I feel NO safer and am certain that if ANY terrorist attacks had been stopped—or any data could point to the return we’ve received on our security ‘investments’ to date—that our security agencies and Congress would be tripping all over themselves to make certain we all knew how incredible they are and that they’ve nearly bankrupted the country to fund it all was worth it. Instead, notice how over the last twelve years there has been basically zero release of data on any thwarted terrorist attacks? Instead of feeling safer I can count dozens and dozens of ways our essential liberties have been taken away from us, all with the justification that they are keeping our nation “safe”. 

I am not giving up my essential liberty and will not and make my voice heard by our elected representatives. That said, just look at one way our liberty has (and continues to be) eroded: Unreasonable searches and seizures. 

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause, how is it that:

• The controversial Cyber Intelligence Sharing and Protection Act (CISPA) passed the U.S. House (and, by the way, amendments to the bill were passed in secret) and is now in the Senate. CISPA will allow private companies to share the personal data of every U.S. citizen and resident with the U.S. government, its law enforcement agencies, intelligence services, and over 600 other agencies.

The punchline to this bill? CISPA-uncovered personal data given to just about any agency? Well guess what? CISPA also amends the National Security Act, allowing U.S. intelligence services to share classified information with anyone, even persons without a security clearance. How is this not an unreasonable seizure?

• The National Security Agency (NSA)—an agency whose mandate expressly disallows spying on any citizen within the United States—will have its new $2 billion dollar data center online this September (see The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)). Though the NSA has been allegedly vacuuming up all internet traffic for some time WITH NO WARRANTS (which President Bush finally, supposedly rescinded in 2007 and the NSA publicly refutes in this public transcript PDF as “false myths”), this Washington Post article refutes the NSA’s public mythbusting and shows why the NSA needs that gigantic data center: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications. The NSA sorts a fraction of those into 70 separate databases.“

The punchline? The only justification I can find for why the NSA is being allowed to vacuum up everything digital is that it’s not ‘unreasonable’ since they’re not actually and actively ‘searching’ the data. Much of it is encrypted but the NSA is working on quantum computers which supposedly will be able to crack any encryption at some point in the not-too-distant future. How is their mass accumulation of all digital data not an unreasonable seizure? How can we be certain that CISPA won’t allow after-the-collection data mining to occur and thus allow the NSA (and anyone else, apparently) to uncover something that hints you might be up to something even if you are not?

• The final straw for me was that Google, one of the companies I use extensively and who has valiantly been trying to force the government to have probable cause and court-approved authority to request and be given our personal data, has now been court ordered to hand private customer data over to FBI investigators (by the judge who earlier ruled National Security Letters unconstitutional orders Google to nonetheless comply with them).

The punchline? How can I be certain that my email, web surfing, banking, stock trading, phone calls and any other private use be private? I understand that anything that I deliver publicly has an illusion of privacy and might be made public at some point, but if I have an expectation of private use (like for my banking, stock trading, and other data Google can ‘see’ in my browser tabs) shouldn’t that actually be private and anything else be considered an unreasonable search and seizure without probable cause?

IF YOU DON’T HAVE ANYTHING TO HIDE…
I’ve had so many people argue with me about my Fourth Amendment position that I love countering their twisted “You don’t have anything to hide, do you?” logic that I ask them a few questions, ones I’ll ask you to consider too:

• How much money do you make?
• What is your net worth?
• Do you ever look at internet porn and if so, what sites?
• Can I come to your home and rifle through your computer and file drawers?
• If none of that is OK with you, can I at least have your email login credentials so I can read all of your past emails?”

Universally the answer is something like, “No! What are you…nuts?” but the smart ones immediately get the point because THAT is what is going on at the governmental level with your public, semi-public, and your “but-I-expected-it-to-be-actually-and-securely-private” data. 

So instead of being outraged over their loss of liberty, I find my family and friends deeply outraged about issues like the national controversy over guns, State level decisions surrounding same-sex marriage, puppies who have been abused and other causes which are obviously very important, but I believe pale in comparison to the profoundly fundamental loss of our liberty.

So if you care about your liberty, do something about it.

UPDATE: I’ve reached out to both Senator Amy Klobuchar (D-Minnesota) and Senator Al Franken (D-Minnesota) whose action I request to vote against CISPA and encourage President Obama to drive forward on checks and balances to stop the erosion of our liberty. 

UPDATE Thursday, June 6: The Guardian’s Glenn Greenwald reported Wednesday evening that the National Security Agency has used a secret court order issued in April to collect the records of all phone calls made on the Verizon network. If that isn’t bad enough U.S. intelligence mining data from nine U.S. Internet companies in broad secret program including Google, Apple, Microsoft (and Skype) and others.