John Diaz: How do we balance electronic privacy rights?
Rep. Zoe Lofgren, D-San Jose, knows her history on the Fourth Amendment. In a Santa Clara Law Review article last year, Lofgren reminded that the very reason for this constitutional protection against “unreasonable search and seizure” was the framers’ response to the use of “general warrants” that allowed British soldiers an unfettered ability to search homes and individuals in the American colonies. Our founding fathers found this process to be abhorrent, Lofgren noted.
As technology advanced, threats to privacy rights escalated. Lofgren noted the ringing dissent of Justice Louis Brandeis to the 5-4 decision (Olmstead vs. United States) that allowed a phone wiretap without a warrant. Brandeis suggested there was little difference between a government listening in on a phone call and opening a sealed letter.
“The right to be left alone,” was Brandeis’ memorable definition of privacy.
As Lofgren pointed out in her law review article, Brandeis was not just right — the Olmstead ruling would later be overturned by the high court — he was prophetic. He predicted that science eventually would allow government to view or review documents “without removing them from secret drawers.” We have reached that point today. And the law has yet to catch up with technology — and defend the hard-won principle from the American Revolution that government must show cause before performing the equivalent of a general warrant on citizens without cause. Lofgren is determined to correct that. She has recently introduced three bills that would help restore the balance between privacy and civil liberties that has been lost in the fear created by 9/11 and the data-mining capabilities that have been created by technological advancement. The notion that government agents could decide for themselves — without judicial review — to examine an individual’s online communications would be abhorrent to the framers of the Fourth Amendment. So would the surveillance orders that prevent Internet providers from even acknowledging that they are giving up customer information in general terms, or a government insistence that companies provide “backdoor” access to its customers’ personal actions.
Lofgren emphasized that her bills maintain “emergency exceptions” in national security situations. The debate here is not about protecting Americans from terrorism. It’s about reinstating a due distance between people and their government.
“Are we facing a greater threat than we did during World War II? Or the Cold War? Or the Civil War?” Lofgren asked, rhetorically. “What keeps us strong is that we adhere to the freedoms that our Constitution guarantees to us.”
This is not a Republican-Democrat issue. Lofgren has Republican co-sponsors to all three of her bills. Elements of her measures were contained in an amendment to a defense spending bill that cleared the House on a bipartisan 293-123 vote last year. However, that amendment ultimately died on Capitol Hill.
The forces for the status quo are strong. Government authority, once vested, is hard to undo. As a candidate, Barack Obama, the former constitutional law professor, was forceful and elo- quent in calling for a rollback of the surveillance state that had developed since the Sept. 11, 2001, terrorist attacks. As president, he has been largely defensive of the government’s prerogatives.
“It’s kind of an occupational hazard when it comes to the executive branch, going back to presidents of both parties,” Lofgren said.
As the framers put it so well, our rights must be embedded in law, not left to the benevolence of anyone in power at any given moment.
This assault on privacy rights in the technological age is not just a federal issue.
On the state level, Sen. Mark Leno, D-San Francisco, has reintroduced legislation (SB178) that would require state and local authorities to obtain warrants to access private electronic data on smartphones, tablets and other electronic devices. Three previous bills by Leno cleared both houses of the Legislature, but were vetoed last year by Gov. Jerry Brown. Leno has since picked up strong support from the technology industry.
Again, to invoke the wisdom of Justice Brandeis, a modern smartphone may have as much sensitive personal information as a desk drawer in the home that clearly would require a warrant to peruse.
The Fourth Amendment was one of the great freedoms from government intrusion that came out of the American Revolution. We need to acknowledge it, cherish it — and defend it.