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In the coming weeks and months, Congress will debate issues critical to online privacy. Before Congress starts these debates, it is necessary to ask “what is privacy and why is it important?”
Broadly stated, online privacy is an individual’s ability to control personal information disclosure over the Internet and to “control who could access that information.” Because there are many facets of this definition, it is imperative to establish a few perimeters.
Since Congress will be debating laws impacting the relationship of the citizen to the government, this discussion will remain within the confines of that relationship. This discussion will not be an expose about how companies are trying to cull consumer data to better predict shopping patterns and needs.
Two of the topics Congress will address this year could impact how the government collects various types of information about citizens. Because the topics relate to how the government collects information, the online privacy debate is best understood by briefly examining how the British government utilized warrants prior to the Revolutionary War. The Founding Father’s disdain for general warrants and writs of assistance birthed the Fourth Amendment. The British government’s use of general warrants, incidentally, creates an interesting connection between free speech and privacy.
Prior to discussing online privacy, it is important to dispel a myth. Supporting privacy does not mean opposing law enforcement. Privacy advocates look to the text of the Fourth Amendment, which permits law enforcement to conduct searches after obtaining warrants. The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause…”
There is no opposition to lawful investigations targeted at specific individuals. Most privacy advocates will agree that if law enforcement agencies have probable cause indicating evidence of a crime exists on electronic devices, the police may obtain warrants to search the devices.
Online privacy advocates draw the line where law enforcement agencies use technology to gather large amounts of data from innocent citizens. Technology does not provide law enforcement carte blanche to access a person’s sensitive information. Technology employed by law enforcement today allows agencies to track all cellphones within a certain radius of a cell site simulator. Technology employed by law enforcement allows police to record and catalogue license plates. Technology today permitsfederal agencies to install software on computers that allows it to access files, activate cameras, and track a person’s Internet browsing patterns.
Technology permits law enforcement to capture sensitive data in dragnet fashion. In many respects, law enforcement agencies can cull the data looking for evidence suggesting that people have committed crimes. For most of the citizens whose data has been captured, they have neither committed an offense nor do police have reason to believe a crime has been committed.
In the 1700s, the British government utilized general warrants to search the houses of individuals suspected of criticizing the king and Parliament. The printing press as a technology had come into its own. Authors anonymously published pamphlets expressing their displeasure about the government. The king’s agents would break into the houses of publishers and suspected authors in efforts to discover evidence of speech crimes. They would take locked boxes filled with writings, confiscate drawers filled with papers and other files, and take suspects’ books. The agents often did not have any evidence linking the suspects to speech crimes, but were instead on a quest to find the incriminating evidence.
Writs of assistance worked much the same way, and were considered a type of general warrant. The British government needed to pay for the French and Indian War. One of the methods it employed was to crack down on merchants smuggling goods into the American colonies. The writs provided customs officials the authority to enter any house or place of business in search of those smuggled goods. The colonists reacted strongly to the writs, since the government’s agents did not need any evidence the home or business owner possessed smuggled goods. The writs were often used to harass people, to build cases against business owners, or both.
Online privacy means ensuring law enforcement agencies at all levels cannot engage in dragnet-type information gathering activities. It also means ensuring law enforcement has access to electronic information when investigations are targeted at specific suspects and where the government has properly obtained warrants.
People should have the authority to control who has access to their personal data. When the government employs technology to capture the data of individuals not suspected of crimes, the relationship between the citizen and government fundamentally changes. The government becomes big brother and the average citizen a perpetual suspect.
Jonathon Hauenschild, J.D., is a technology policy analyst. He is the founder and principal of Franklin Adams & Co., LLC.