Storing photos and documents “in the cloud” doesn’t mean we give up our Right to Privacy

The right to privacy—the most cherished right among civilized people–fueled the American Revolution and later found expression in the Fourth Amendment. The colonists speaking through immortalized James Otis denounced British Writs of Assistance that empowered petty officials to rummage through homes and businesses without probable cause or a judicial warrant. The spirit of the Amendment was voiced by William Pitt the Elder in an address to the British Parliament:

“The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; the roof may shake; the winds may blow through it; the storms may enter; the rains may enter, but the King of England cannot enter;– all his forces dare not cross the threshold of the ruined tenement.”

Despite the Amendment’s sacralization of the right to be let alone, the government chronically attempts to compromise our private space under bogus banners of national security or law and order in a futile quest for a risk-free existence. The Amendment categorically prohibits “unreasonable” searches or seizures. But the government constantly advocates for crabbed interpretations of the Amendment that would withdraw its protection from any information communicated in confidence to a third party—including Internet providers. In other words, the government aims to cripple our privacy in the Age of the Internet in favor of Big Brother. What makes matters even worse, the government has never demonstrated how these vastly increased surveillance powers would diminish international terrorism or serious crime.

The law is typically backward-looking. It is slow to catch up with the warp speed of technological change. The Obama administration exploited this defect by interpreting and applying federal statutes, including the Foreign Intelligence Surveillance Act (FISA) and the 1986 Electronic Communications Privacy Act (EPCA), to crush the right of privacy. Edward Snowden revealed the Administration’s Orwellian collection of telephonic metadata on every phone call or email of the entire United States population under a tortured interpretation of FISA. It was rejected by the United States Court of Appeals for the Second Circuit. President Barack Obama absurdly likened the National Security Agency’s ubiquitous spying on Americans to Paul Revere’s legendary ride to warn colonists that British redcoats were coming.

Obama’s Department of Justice also demanded warrantless access to information about foreigners stored in a foreign country. Pause to ponder the precedent that would be set. It would enable the dictatorial governments of Russia or China to demand that American companies surrender information stored in the United States about their dissidents without judicial warrants to prosecute them in Russia or China in violation of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights.

Fortunately for the right of privacy, Microsoft resisted. Over several years and at considerable expense, the company defeated the unwearied efforts of the Justice Department to force it to surrender information stored in Ireland without a warrant under a strained interpretation of EPCA. Big Brother officials in the Department, however, are urging review of Microsoft’s  Second Circuit victory in the United States Supreme Court because they know Congress would resist efforts to weaken EPCA by amendment.

Congressman Jim Sensenbrenner, R-WI, deserves a salute for his unwavering defense of the Bill of Rights—especially the right of privacy enshrined in the Fourth Amendment. Sensenbrenner understands the need for Congress to update EPCA to our vastly altered communications landscape since its enactment three decades ago. He is supporting legislation to amend EPCA accordingly.

The congressman should be applauded for recognizing that the right of privacy is too important to be left to the authoritarian whimsies of executive officials or the flukish rulings of federal courts. Let’s hope other members of Congress and the public are as vigilant and enlightened.

As Edmund R. Murrow observed 60 years ago, a people of sheep will get a government of wolves.