“Meet the new boss, same as the old boss…”
The Who’s line is as true now as it was in 1971 and as true as the similar old French saying, “the more things change the more they stay the same.” The same idea is repeated again and again in folk wisdom from every culture, which suggests that it’s based on a shared element of human experience. Change is inevitable, but too often its results are only superficial.
In this case the deja vu we’d rather not be experiencing all over again comes from the Obama administration’s diligent efforts to outdo his much-reviled predecessor when it comes to shreedding our constitutional rights in the interest of national security. Like President Bush, President Obama seems intent on focusing his efforts on rendering the Fourth Amendment utterly meaningless. You know that amendment. It reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It’s the amendment that reminds government and other entities that we have an absolute right to privacy which they can’t just violate at a whim. It’s been under assault for years and eroded away more and more with each new governmental initiative to protect us from the latest bogeyman or from ourselves. The War on Drugs with its asset seizures and warrantless searches has been wearing away at our rights for more than 30 years, but nothing has done more harm than the War on Terror which took the cold-war era Foreign Intelligence Surveillance Act of 1978 and expanded it into a blanket authorization to execute thousands of warrantless wiretaps against US citizens, often with very little justification and virtually no accountability.
FISA was already blatantly in violation of the 4th Amendment before the Bush administration got hold of it. They took the blanket authorization for unlimited wiretapping which was implied in the legislation and ran with it, making it the justification for datamining and automated content scanning of telecommunications completely outside the scope of the technology available when FISA was written, but arguably authorized under the overly broad language of the law. When challenged, they went to the compliant congress and got amendments to the FISA Act in 2008 which protected many of their practices and reduced the level of accountability in the act still further. The ACLU has launched a lawsuit over the constitutionality of the FISA Amendments Act of 2008, but to date it remains in force, giving unprecedented power to the federal government to basically scan and listen to any telecommunications with no prior approval.
Although you might think that President Obama, riding in on his white horse last November, might be here to save us from the Bush administration’s assault on our rights, it turns out that when it comes to warrantless surveillance, they’re enthusiastic supporters of the program and are even willing to take the idea of complete lack of accountability for violating our privacy to a higher level. In a motion to dismiss the case Jewel vs. NSA the Obama Justice Department they reiterated the Bush-era argument that cases against FISA cannot even be brought because they “would cause exceptionally grave harm to national security.” Going even further than Bush did, they also argue that the idea of ‘sovereign immunity’ makes the Department of Justice completely immune from any prosecution for violating the rights of citizens. Not only do we not have the protection of due process under the 4th Amendment, but now we have no standing to sue and even if we do get a case in court the government is immune from any prosecution. As the Electronic Frontier Foundation interprets it, “Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.” So we might as well lie back and take whatever they want to do to us, because those 4th Amendment rights are just gone forever.
This is a strange and ironic change from candidate Obama who said he wanted more transparency in government, but perhaps even more ominous is the latest move from the administration to take complete control of the internet under the newly proposed Cybersecurity Act of 2009 which follows an earlier act which would establish a “Cybersecurity Czar” to oversee internet security. This bill will give the president the ability to “declare a cybersecurity emergency” and shut down or limit internet traffic at any time “in the interest of national security,” a situation whose parameters are left undefined. What’s worse, it gives the Secretary of Commerce “access to all relevant data concerning (critical) networks without regard to any provision of law, regulation, rule, or policy restricting such access.” This is another attack on the 4th Amendment, giving completely unaccountable federal officials total access to internet communications without any safeguards of the rights and privacy of citizens. There’s no requirement for a warrant, no need for probable cause, no liability for any harm done and not even any requirement for reporting or limitations on how these powers can be exercises.
This proposed act runs directly counter to the protections provided in the 4th Amendment and also the Electronic Communications Privacy Act which was passed in the 1980s to reaffirm that privacy rights applied to internet communications. The act is supported by powerful congressional Democrats and by the Obama administration, so it stands a reasonably good chance of passing, and it’s just the first step in a comprehensive strategy to expand government control over the internet and what goes on there. The good news is that unlike FISA and its recent amendments, this bill has not yet passed into law and it’s possible that with enough public opposition it might be altered to include safeguards for the privacy rights of citizens while still addressing legitimate national security needs.
With FISA and the expansion of FISA under the Bush administration we saw too much of our liberty legislated away in the name of national security. It is now clear that the Obama administration wants to continue and expand on that trend. It has never seemed more believable that the future of universal surveillance and the elimination of personal privacy envisioned in George Orwell’s 1984 might become a reality. The 4th Amendment was a powerful and definitive statement on privacy rights, but as things stand today it is almost as if it never existed. It is not being observed or enforced and seems to mean nothing to the bureaucrats of the security establishment or the current administration.
We may very well need protection from terrorists and malicious hackers and cyberwarfare, but safety from those threats has much less value if we lose our basic freedoms in the process. It is fundamentally wrong to treat all citizens as criminals to catch the real criminals or to take away everyone’s privacy to expose hidden enemies. The emergence of new technology and new mediums of communication does not make our old-fashioned rights obsolete. We just have to find new ways to preserve and protect those rights within the new worlds which technology has opened up for us. As we go forward, the preservation of our rights and protection of citizens from government as well as external threats, must be our highest priority.