“We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.” —Justice William O Douglas
Perhaps some will read this and the knee-jerk reaction might be, “Oh, there goes one of those tin-foil-lined hat rants again…Like the government doesn’t have anything better to do than watch, “me.” Perhaps on some level, thinking of the government having citizens under surveillance harkens back to Soviet-style citizen oppression, much less being an inefficient and wasteful use of valuable resources. This issue, however, focuses on the incidental happenstance of average citizens and the likelihood of being caught up in something few contemplate or even envision.
You’re watching the news and a story about bombs and explosives airs and part of the interview features some law enforcement mouthpiece claiming, “The bomb was constructed from instructions readily available on the internet…and materials bought at local hardware and home goods retailers…” You have never given thought about building a bomb, much less how to build one. So, being bored you grab your laptop and Google, “How to build a bomb” Sorting through the various hits the topic garners, you spend all of ten minutes searching and reading. All you really want to know is if the claims made have any credibility.
Or perhaps you were one of the people that could not pull themselves away from the ugly details of the Casey Anthony murder trial and you did your own curiosity search in, “How to make Ether.”
So now, you have done your searches on the internet for these topics. You have satisfied your curiosity (or perhaps you haven’t, given all the crap that comes with such a search) and you have now formed an opinion about the claims made, dubious or otherwise credible. You close your laptop, finish your television viewing, and go to bed.
A week or two passes…Two AM…raucous pounding and yelling at your door startles you out of bed. The government is at your door to take you into custody and seize your computer. Or perhaps the government has not come after you and life, as you know it continues on… Status quo. But how exactly do you know the government has not taken a look at you?
Our government presently uses secret orders to obtain e-mail, cell phone and other digital information without search warrants. Many of these “orders” are usually indefinitely sealed so we cannot possibly know the full extent these orders are used. U.S. Magistrate Judge Stephen Smith of the Southern District of Texas, in an interview reported by Julia Anguin of the Wall Street Journal said, “people who aren’t indicted – regular law abiding citizens like you or me, will never know if their records were obtained in an investigation, he says, “because these sealing orders live on indefinitely.”
The case that brings this issue to the fore is the Wikileaks case. In that case, the government made a secret order to force Google Inc. and Sonic.net, a small Southern California based Internet service provider to furnish e-mail account information on Jacob Appelbaum, a purported WikiLeaks volunteer.
Sonic mounted a legal fight to oppose the government and lost, resulting in the forced turn-over of the information. The government sought the email addresses of people Appelbaum had communicated with in a two-year period, but did not seek the full textual details of the email communications.
The Electronic Communications Privacy Act of 1986, authored by favorite leftist hack, U.S. Senator Patrick Leahy of Vermont, was a precursor to the World Wide Web. Obviously, the law had not contemplated the whole extent of the role of internet service in our daily lives today. In its present form, the ECPA permits the government to secretly obtain information from people’s email, cell phones and social media accounts without having to obtain a search warrant.
The ECPA is currently used by law enforcement to obtain emails, cell phone location data, and other digitally generated media absent a search warrant where probably cause must be shown for the commission of a crime. Inversely, government need only show that “reasonable grounds” exist that such interceptions are a, “relevant and material” investigative need.
We now live at a time when government seems to be taking its liberties by parsing our constitutional protections where the overarching concept of the Fourth Amendment to the constitution. Despite the numerous legal challenges mounted in ECPA cases, the government fights hard to keep this ability. For that, I am lost on how our constitution continues to restrain what seems to be a slow and steady march toward arbitrary and oppressive governance.