Commentary

Tea Partiers: Defend Our Digital Privacy

The American Civil Liberties Union has been persistently diligent — and accurate — in alerting us to the ever-increasing government invasion of our privacy. As the ACLU reported on Aug. 11: “The government’s appetite for our electronic information is out of control. The National Security Agency is intercepting 1.7 billion e-mails, phone calls and other communications per day.”

Both Presidents Bush and Obama firmly support the NSA. Nearly all the Democrats in Congress, now under their control, follow their leader in lockstep on privacy issues. Few Republicans voice Fourth Amendment concerns. And, as I’ve reported, with the FBI’s Domestic Investigations and Operations Guide, that agency can conduct “threat” investigations of any American without any reasonable suspicion of criminal activity or intent — and without having to go before a judge.

Worth noting in the FBI Dec. 16, 2008, “Domestic Investigations and Operations Guide” is a list of “The FBI’s Core Values” that includes “Rigorous obedience to the Constitution of the United States (and) Accountability by accepting responsibility for our actions and decisions and their consequences.” (These remain in the FBI’s “Core Values,” among its documents.)

Would you define as “rigorous obedience to the Constitution” the following action by the FBI: “ACLU: FBI used ‘dragnet’-style warrantless cell tracking” (Cnet.com, June 22)? Tracking two men accused of robbing banks in Connecticut, the FBI engaged in “warrantless monitoring of the locations of about 180 different cell phones.”

In the subsequent case now before the U.S. District Court in Connecticut, United States of America v. Luis Soto, the ACLU and the Electronic Frontier Foundation (the leading defender of our disappearing digital privacy) make this constitutional claim that should deeply concern the many millions of Americans often seemingly glued to their cell phones:

The Fourth Amendment requires the government to comply with the warrant requirement before accessing people’s location and movement information, which reveal intimate details of their lives protected by reasonable expectations of privacy.

In this dragnet FBI operation, how many of the 180 cell-phone owners — with no connection to the bank robberies — have had their constitutional rights rigorously protected?

If you’re looking apprehensively at your own cell phone, the Obama administration tells you not to worry. In the June 22 Cnet.com news story on the FBI dragnet, Department of Justice lawyers are quoted as assuring us that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records.” Its own records of US?

You want to change your phone company? It will be exceedingly difficult to find a telephone company that, in obedience to the Constitution, refuses — without a government showing of reasonable suspicion — to give its customers’ cell-phone histories to the FBI or any other government agency.

To the credit of some of the companies, however, there is a coalition — including, among others, AT&T, Qwest, Google, Microsoft, AOL — demanding “that warrants to track the whereabouts of Americans — or at least their cell phones — are necessary.”

Even if the Republicans take control of Congress in the midterm elections, I doubt any action will be taken on the constitutional claims of this coalition, along with those of the ACLU and the Electronic Freedom Foundation.

But, if there are still any civics classes in our public schools, students will be able to discover a precipitating cause of the American Revolution and the subsequent Fourth Amendment to the Constitution. While we were still under the rule of King George III, British customs officials had the power — without going before a court — to storm into our homes and offices with “writs of assistance” — general warrants they wrote by themselves. They would then seize documents and anything else they wished, sometimes turning everything upside down, including the occupants.

When I used to tell stories about the Bill of Rights in civics classes in various parts of the country, students became quite excited on hearing about the colonists’ angry resistance to such home invasions. Those pre-Revolutionary Americans insisted they had certain privacy rights as British citizens. Had not William Pitt declared in Parliament in 1763: “The poorest man may, in his cottage, bid defiance to all the forces of the Crown, the storm may enter; the rain may enter … but the King of England may not enter.”

What especially moved the students I spoke to was the story of a passionate argument before the high court of Massachusetts in 1761 by James Otis opposing a new writ of assistance. In the audience that day was a young lawyer, John Adams, who took notes, and years later declared:

“Otis was a flame of Fire! … Then and there was the first scene of the first Act of opposition to the arbitrary Claims of Great Britain. Then and there the Child Independence was born.”

And, as Leonard W. Levy states in his invaluable Origins of the Bill of Rights (Yale University Press): “On the night before the Declaration of Independence, Adams asserted that he considered ‘the Argument concerning Writs of Assistance’ ” led to our independence.

But now, the FBI may enter our personal cottage of electronic communications without hindrance from any court or current president. It’s a pity how many Americans, just like those in our government, know so little of how we came to be who are — or rather, used to be before the National Security Agency and the FBI became free to discard our privacy, among other Bill of Rights protections increasingly invaded by our rulers.

I ask again: Are the tea partiers, in all their calls for limited government, going to bring back the fire of freedom to the Fourth Amendment? Is there a Paul Revere among them?

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including The War on the Bill of Rights and the Gathering Resistance.