Congress Votes (Again) to End Your Privacy Rights
Most Americans misunderstand their right to privacy.
The US Constitution provides no explicit right to privacy. The few privacy rights we have come from implied constitutional protections, along with a few largely ineffective and obsolete laws.
For instance, the Fourth Amendment prohibits “unreasonable searches and seizures.” Any search of “persons, houses, papers, and effects” requires a search warrant, which is issued based on “probable cause, supported by Oath or affirmation … describing the place to be searched, and the persons and things to be seized.”
More than two centuries later, our “expectation of privacy” has waned. Information we once considered intensely personal we now routinely release for public consumption. People document every moment of their lives via webcams or blogs. They live vicariously through others' by watching reality television shows. Anyone can build an audience on a social media platform like Twitter and publish minute-by-minute updates of their most mundane activities.
Laws and court decisions have mirrored our eroding expectation of privacy. For instance, anyone with a camera, including a cop, can legally take your picture when you are in a public space. And the Supreme Court has ruled that you have no expectation of privacy with records held by third parties, unless a specific law holds otherwise.
Privacy legislation usually passes only when questionable information-handling practices are related to highly visible or newsworthy events. For instance, the Video Privacy Protection Act of 1988 came into being only after the records of videos rented by Robert Bork were leaked to newspapers during the debate over his Supreme Court nomination. Under US law today, your video rental records from Redbox have greater legal protection than your financial records. (And no, the law doesn’t apply to video streaming services like Netflix.)
In the courts, Fourth Amendment rights are determined by what is called the expectation of privacy test. The test is made up of two parts:
Whether an individual has exhibited an expectation of privacy.
Whether society recognizes a situation as inherently private.
The expectation of privacy test is essentially based on public opinion. As societal "inter-connectedness" continues to increase, expectation of privacy declines. That’s especially true in the face of external threats such as terrorism.
Most Americans now believe that terrorist suspects shouldn't have the same constitutional rights as ordinary citizens. So it’s no surprise that Congress has also given intelligence agencies the authority to conduct warrantless eavesdropping of suspected terrorists.
I’ve long believed that public opinion would eventually accept warrantless eavesdropping for other types of criminal investigations under what’s been dubbed the “surveillance creep” principle. And that’s exactly what Congress approved, and President Trump signed into law, two weeks ago.
The legislation dealt with amendments to a law called the Foreign Intelligence Surveillance Act (FISA). Originally FISA permitted US intelligence agencies to conduct surveillance without a warrant only against a foreign power or its agents. There could be no substantial likelihood that the contents of any communication of a US person would be acquired. If a suspected foreign intelligence agent was in the US, or communicating with someone in the US, the intelligence agency had to obtain a search warrant from a court established under the act.
The government’s ability to conduct warrantless surveillance was greatly expanded by amendments to the FISA enacted in 2008 (known as the section 702 amendments after the section of the FISA they amended). The amendments allow the National Security Agency (NSA) and other intelligence agencies to mine the data collected by US telecom companies. Once authorized, surveillance can continue for up to one year.
The amendments must be reauthorized every five years. Section 702 was reauthorized in 2012 with the support of President Barack Obama, a Democrat. And proving that both parties endorse surveillance creep, President Donald Trump, a Republican, just reauthorized this type of surveillance for another five years.
The scope of these amendments came to light in 2013 when NSA whistleblower Edward Snowden leaked documents that demonstrated that virtually anyone with the proper authorization could perform what the Guardian called "extensive, in-depth surveillance on live communications and stored information." This included surveillance of email, video and voice chat, videos, photos, voice-over-IP chats (such as Skype), file transfers, and social networking details.
But since Section 702 applies only to non-US citizens outside the US, how could it pose a privacy threat to ordinary Americans? In many cases, it’s difficult or impossible for the NSA to pinpoint the origin of electronic communication. What’s more, it’s perfectly legal for the NSA to collect data on Americans who communicate with targeted subjects outside the US. The agency also sometimes inadvertently collects domestic communications as part of its surveillance mission.
Indeed, Snowden showed that these powers have even been secretly used as evidence to investigate crimes completely unrelated to terrorism, again without a warrant.
How does the Fourth Amendment, which requires a warrant to search “persons, houses, papers, and effects” of Americans, fit into all this? Remember, the Supreme Court has ruled that you have no right to privacy to information you knowingly turn over to a third party (e.g., your Internet Service Provider). That means the only way this data could possibly be protected is if Congress enacts a law specifically authorizing an exception to this rule.
In early January, a group of lawmakers including Sen. Rand Paul (R-Kentucky) tried to do just that. But they failed. In fact, the new law is even worse than the one that just expired. Now the FBI can retrieve data the NSA collects without a warrant and use it in criminal investigations unrelated to any foreign intelligence or terrorist threat.
The new law actually gives Americans suspected of terrorist activity greater due process protection than those who simply have their data vacuumed up by the NSA.
If you’re looking for someone to blame for this mess, look in the mirror. We’re all responsible. Our shrinking expectation of privacy made this inevitable.
For proof, look no further than Congress. In a rare gesture of bipartisanship, Congress rejected the USA Rights Act, an amendment that would have meant the NSA and FBI would require a warrant to access communication data. In the House of Representatives, about two-thirds of Republicans voted against the amendment and about two-thirds of Democrats voted for it. The leadership of both parties vigorously opposed greater protection.
And if you want to protect your privacy? Boils down to one piece of advice: encrypt all electronic communications.
Encryption scrambles data using mathematical formulas that make the message unreadable to anyone without the key to "decrypt" it. The programs and processes now used for this purpose are so sophisticated, according to Snowden, that even the super-computers used by NSA can't routinely decipher them. There are three levels of encryption you should be using:
- For email encryption, a good option is some variant of Pretty Good Privacy (PGP). A free basic version of PGP is GNU Privacy Guard. This program also lets you encrypt files on your PC. It can be cumbersome to work with, so you may want to look for add-ons and tools that make encryption easier for newbies. The one we use here at The Nestmann Group is Enigmail, a plug-in for the popular Thunderbird email program.
- Even if you encrypt the content of your messages, the “header” information (i.e., the recipient of the message and the date and time it was sent, along with other data) remains intact. If the data stream between your PC and the Internet is not encrypted, your Internet Service Provider can monitor who you’re corresponding with, on what dates, and how often. If a law enforcement agency conducts this type of investigation, it doesn’t need a warrant – simply a subpoena stating that the data is relevant to an investigation. The best way to protect yourself from this type of privacy intrusion is with a virtual private network, or VPN. The one we use at The Nestmann Group is Cryptohippie.
- Finally, you’ll want a non-US email provider. Email stored on US servers can be retrieved with minimal due process by police. A good email provider is ProtonMail. The company offers end-to-end encrypted email and is based in Switzerland. That means your stored emails are secure from US subpoenas and court orders. In addition, ProtonMail has no access to the contents of your email, because only you have the password used to encrypt your email messages.
Your government has zero interest in protecting your privacy. Quite the opposite. If you value privacy, you’ll need to act on your own to protect yourself. Today wouldn’t be too soon to start.
Protecting your assets (and yourself) against any threat - from the government, the IRS or a frivolous lawsuit - is something The Nestmann Group has helped more than 15,000 Americans do over the last 30 years.
Feel free to get in touch at firstname.lastname@example.org or call +1 (602) 688-7552 to learn how we can help you.
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