What Aren’t They Collecting?

-Submitted by David Drumm (Nal), Guest Blogger

Our thoughts, but they’re working on that. The right to privacy, or from Justice Brandeis’s overly broad understanding: “the right to be left alone,” is fundamental to a civilized society. We each choose the amount of information about ourselves we want to disseminate to other members of our society. Each of us has different levels of comfort about when and which information is disseminated and to whom. Some information that we would share with our best friends, we would not want divulged to a complete stranger.  In most situations, the information most of us would share with a complete stranger would max out with our first name. Yet, without our knowledge or consent, because we live in a technological society, our personal information is being vacuumed up by  strangers who exercise the power of the state.

Georgetown law professor Randy Barnett notes that:

By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call “informational privacy.”

Back in the Founder’s time, paper was state-of-the-art for containing information so “papers” contained a person’s information. Today, in addition to paper, we have digital media to contain our information. Without probable cause, the blanket seizure of data on every American is unconstitutional.

Judge Richard A. Posner contends that this data collection is not a grave threat to civil liberties. He writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy.

However, the civil liberty that is threatened is the right to be secure from unreasonable seizures. The vast amounts of personal data can definitely be seized by machines. That’s the genius of the Fourth Amendment, it kicks in at the seizure level, before privacy is even a consideration. No seizure, no loss of privacy.

Recently the FISA court has been using the legal principle of “special needs” to exempt terrorism cases from the Fourth Amendment’s requirement for a warrant. The special needs doctrine was enlarged in the Supreme Court’s 7-2 decision in the case of Skinner v. Railway Labor Executives’ Association (1989). In that case, the Federal Railroad Administration was given authority to conduct drug tests of railroad personnel because it had “‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.”

In his dissent, J. Marshall wrote:

the damage done to the Fourth Amendment is not so easily cabined. The majority’s acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens.

A slippery slope is never more evident as when you’re at the bottom looking back.

No communications system is exempt from collection. Even the vaunted Skype with its hard to intercept peer-to-peer transmission and encryption is no longer secure. To the dismay of many, Microsoft paid $8.5 billion for a company which posted a yearly profit of $264 million and had a long-term debt of $686 million. In a recent security check, researchers created four web sites solely for the purposes of the check. The four links were sent over Skype. Two were no clicked on, but the other two were accessed by a computer with an IP address belonging to Microsoft.

H/T: Daniel J. Solove (pdf), Glenn Greenwald, Conor Friedersdorf, Eric Lichtblau, John Wesley Hall, J.D. Tuccille, Dan Goodin.