January 9, 2014
2014 must be the year when we finally do something to protect our privacy, now that seven months of serial scoops about government spying and snooping have gotten our attention.
We are all on the case, sort of — shaken out of our complacency and apathy by those revelations of America’s domestic and global spying, in those top-secret documents rookie contractor Edward Snowden stole so easily from the impenetrable National Security Agency.
Many Americans now worry that a raging Big Brotherism is secretly robbing us of our privacy.
Indeed, the more we think about it, the more we realize this ultimate violation we once thought was just George Orwell’s nightmare of a futuristic 1984 has become our reality today.
If we hope to take back our constitutional right of privacy, we need to first figure out just what we’ve lost to this rampant Big Brotherism — and who is the enemy who took it from us in the first place. That’s our mission today.
First, let’s take inventory of what we’ve lost.
We know from Snowden’s early scoop that the NSA is amassing so-called “metadata” about the phone calls of millions of Americans. The NSA keeps records of phone numbers we call or that call us — just the numbers, not the content of conversations. (If we are contacted by a suspected terrorist, the feds match his number to ours — and check out everyone we call.)
Understandably, the metadata revelation triggered consternation from all who think it is a violation of privacy for the government to even keep a record of numbers we call or who call us. President Obama recently said he might recommend that phone companies, not the NSA, should keep this data.
But your privacy can be violated in ways more extensive than collecting metadata. Example:
1. Your email content (not just the address of the recipient) on some servers is routinely scanned — searched for key words. Google has acknowledged that Gmail messages have been scanned by machines, not humans, so users can get pop-up ads about topics of interest. If you write a friend about body building, you may soon get health product ads. Write about an immigration concern and you may get an immigration attorney’s ad.
2. Your Internet searches are being tracked and stored on some search engines. When you search how to make a cake or a nuclear bomb, or want to see a rhinoceros’ horn or recreational porn — you may get ads aimed at your search content.
3. Your smartphone may be outsmarting you — some features enable your phone carrier to know your location at all times.
That last theme — police seeking to track a suspect by putting a device on his car — led to a now-famous Supreme Court concurring opinion. In the 2012 case of U.S. v. Jones, Justice Sonia Sotomayor transcended the specific issue and wrote, most presciently:
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
You are here: Each of those invasions is far more intrusive than NSA’s storage of metadata. In all three examples, we endure blatant invasions of our privacy because we are considered to have given our consent. Sometimes consent is required to use the service. Other times, companies just make it very difficult to opt out.
Now ask: Can a government agency someday gain access to those private computer and cell phone company records? Can a prospective employer (government or private) someday check your computer search records to see whether you searched for something spelled with three X’s?
Congress must investigate anew these digital-age privacy invasions that, as Justice Sotomayor observed, are a fact of our lives today. Our laws must catch up to our technology.
The creative minds of Thomas Jefferson, James Madison and their contemporaries would be mind-blowingly fascinated by our high-tech life today. But they would surely be shocked to see that the constitutional guarantees they so painstakingly crafted for the ages have come to this.
Martin Schram is a veteran Washington journalist, author and TV documentary executive. Readers may send him email at firstname.lastname@example.org.