John Whitehead's Commentary
Can You Trust the President, Congress or the Courts to Protect Your Privacy Rights?
“The game is rigged, the network is bugged, the government talks double-speak, the courts are complicit and there’s nothing you can do about it.”—David Kravets, reporting for Wired
Nothing you write, say, text, tweet or share via phone or computer is private anymore. This is the reality of the internet-dependent, plugged-in life of most Americans today.
A process which started shortly after 9/11 with programs like National Security Agency (NSA) wiretapping and Total Information Awareness has grown into a full-fledged network of warrantless surveillance, electronic tracking and data mining, thanks to federal agents having been granted carte blanche access to the vast majority of electronic communications in America. Their methods generally run counter to the Constitution, but no federal agency, court or legislature has stepped up to oppose this rapid erosion of our privacy, and there is no way of opting out of this system.
Consequently, over the course of the past 12 years, Congress, the courts, and the president (both George W. Bush and Barack Obama) have managed to completely erode privacy in America. Complicating matters further is the fact that technology is moving so rapidly that we often find ourselves making decisions (or subjected to decisions) whose consequences we can scarcely comprehend.
A good case in point is Presidential Policy Directive 20, a secret order signed by President Obama in mid-October as a means of thwarting cyberattacks. Based on what little information has been leaked to the press about the clandestine directive, it appears that the president has essentially put the military in charge of warding off a possible cyberattack. A FOIA request by the Electronic Privacy Information Center (EPIC) seeking more details on the directive was allegedly denied because doing so could cause “exceptionally grave damage to the national security.” However, EPIC believes the order allows for military deployment within the United States, including the ability to shut off communications with the outside world if the military believes it is necessary.
Dependent as we are on computer technology for almost all aspects of our lives such that a cyberattack on American computer networks really could cripple both the nation’s infrastructure and its economy, this puts us in a somewhat precarious position. Do we allow the government liberal powers to control and spy on all electronic communications flowing through the United States? Can we trust the government not to abuse its privileges and respect our privacy rights? Does it even matter, given that we have no real say in the matter?
Essentially, there are three camps of thought on the question of how much power the government should have, and which camp you fall into says a lot about your view of government—or, at least, your view of whichever administration happens to be in power at the time, in this case it being the Obama administration.
In the first camp are those who trust the government to do the right thing—or, at least, they trust the Obama administration to look out for their best interests. As then-Senator Obama himself observed during a 2006 trip to Kenya: “In the end, if the people cannot trust their government to do the job for which it exists — to protect them and to promote their common welfare — all else is lost.” With a religious fervor not unlike that of many George W. Bush devotees, Obama’s most ardent followers largely want to believe that their “chosen one”—the man Jamie Foxx refers to as “our Lord and Savior Barack Obama”—will save them.
To this group, Presidential Policy Directive 20 is simply a desperately needed blueprint for dealing with a possible cyberattack, with the military as the most logical means of thwarting such an attack. Any suggestion that the Obama administration might abuse this power is dismissed as right-wing hysterics.
In the second camp are those who not only don’t trust the government but think the government is out to get them. Sadly, they’ve got good reason to distrust the government, especially when it comes to abusing its powers and violating our rights. For example, consider that government surveillance of innocent Americans has exploded in the past 12 years. In fact, according to a transparency report recently issued by Google, the US government made over 16,000 requests for user data in the first half of 2012. Google complied with 90% of these requests. Federal magistrate Judge Stephen Smith estimates that 30,000 secret surveillance orders issued by the federal government are approved each year, allowing federal agents to access all forms of electronic communications, including tapping into one's internet connection, accessing one's email, and tracking one's cell phone. Since these orders are created in secret, are not subject to appellate review, are sealed indefinitely, and do not always result in criminal charges, most people targeted for surveillance have no idea they have been spied on. All of this spying and data collection has led Wall Street Journal reporter Julia Angwin to claim that the US government has more data on American citizens than the Stasi had on all East Germans.
To those in this second group, Presidential Policy Directive 20 is nothing less than the shot across the bow—a clear warning by the government that it intends to establish martial law and will use the military to shut down all means of communications.
Then there’s the third camp, which neither sees government as an angel or a devil, but merely as an entity that needs to be controlled, or as Thomas Jefferson phrased it, bound “down from mischief with the chains of the Constitution.” A distrust of all who hold governmental power was rife among those who drafted the Constitution and the Bill of Rights. James Madison, the nation’s fourth president and the primary author of the United States Constitution and the author of the Bill of Rights, was particularly vocal in warning against government. He once observed, “All men having power ought to be distrusted to a certain degree.”
Government exists to secure rights, an idea that is central to constitutionalism. In appointing the government as the guardian of the people's rights, the people give it only certain, enumerated powers, which are laid out in a written constitution. The idea of a written constitution actualizes the two great themes of the Declaration of Independence: consent and protection of equal rights. Thus, the purpose of constitutionalism is to limit governmental power and ensure that the government performs its basic function: to preserve and protect our rights, especially our unalienable rights to life, liberty and the pursuit of happiness, and our civil liberties.
“Separation of powers” and “checks and balances” are central to such a constitutional system of government. Separation of powers ensures that no single authority is entrusted with all the powers of government. Similarly, a system of checks and balances was intended to strengthen the separation of powers and prevent despotism. Such checks and balances include dividing Congress into two houses, with different constituencies, term lengths, sizes and functions; granting the president a limited veto power over congressional legislation, as well as congressional oversight and limitations on presidential powers; and appointing an independent judiciary capable of reviewing ordinary legislation in light of the written Constitution, which is referred to as “judicial review.”
To those in the third camp, Presidential Policy Directive 20 is problematic on many fronts, especially because it lacks transparency (the NSA has actually declared the secret order exempt from disclosure) and aims to engage the military in domestic matters, in direct contravention of Posse Comitatus. These individuals believe that the only way to ensure balance in government is by holding government officials accountable to abiding by the rule of law.
Unfortunately, with all branches of the government, including the courts, stridently working to maintain its acquired powers, there seems to be little to protect the American people from the fast-growing electronic surveillance state. Making matters worse, Congress has chosen to dig the hole even deeper. The Senate is set to vote on a bill which will give 22 regulatory agencies, including the FTC, the FCC, and the Federal Reserve, among others, the power to access people’s email, Facebook and Twitter accounts without a warrant.
Clearly, we now find ourselves in a constitutional malaise—one that, if not brought under control, will continue to centralize power in Washington, DC. Unfortunately, most Americans are so caught up in the day-to-day struggle to just get by that they are unaware that we no longer reside in Abraham Lincoln’s America—the one he envisioned as being a “government of the people, by the people, for the people.”