Restoring the Right to Be Let Alone

The spark of the American Revolution was the right to be let alone. But it is everywhere under assault through foreign intelligence collection, national security letters, administrative subpoenas, the third-party doctrine of the United States Supreme Court, the USA Freedom Act, and the Cybersecurity Information Sharing Act.

Congress should restore the right to the brightest star within our constitutional constellation by prohibiting government encroachments on citizen privacy unless strictly necessary for law enforcement or counterterrorism. Speculation or uncorroborated hunches should not be enough.

In 1761, James Otis denounced British Writs of Assistance which empowered every petty British official to rummage through the homes or businesses of the colonists in search of contraband or smuggled goods. He remonstrated: "It is a power that places the liberty of every man in the hand of every petty officer." John Adams later chronicled: "Then and there the child of independence was born."

The right to be let alone found expression in the Fourth Amendment. It generally prohibits searches and seizures unless justified by a warrant issued by a neutral magistrate based on probable cause to believe that the place to be searched or the person to be seized is implicated in crime. Even in circumstances where a warrant is not required, all searches and seizures must be "reasonable."

In Olmstead v .United States (1928) (dissenting opinion), Justice Louis D. Brandeis explained that the makers of the Fourth Amendment, "conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men."

Privacy is a cornerstone of our Republic in which the people are intended to censure and scrutinize government, government is not intended to censure or surveil the people.

Consider the following.

No person is completely clean on paper.

They will refrain from criticizing government and holding it accountable for fraud, waste, abuse, or lawlessness if they fear government will retaliate by disclosing embarrassing information from dossiers assembled through indiscriminate surveillance. The people will become docile, a great menace to freedom.

The need for fearless citizen scrutiny and criticism of government has never been greater. An invertebrate Congress has virtually defaulted on its constitutional oversight duties by meekly surrendering to presidential claims of privilege or state secrets or eschewing hearings on overriding issues like war and peace. On November 6, 2015, for instance, 35 Members of the House of Representatives wrote a letter in vain to Speaker Paul Ryan asking that he direct the committees of jurisdiction to draft and report out an AUMF regarding the ongoing war against ISIL in Iraq and Syria as soon as possible.

Citizens need to step into the oversight gap created by congressional nonfeasance. The importance of oversight has heightened as the government has grown from a tiny acorn in 1790 with a budget below $10 million and a few officers and employees to a giant oak today with a budget exceeding $4 trillion and millions on the government payroll.

Privacy is also cherished because it encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment. Justice Brandeis added in Olmstead: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect...They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations."

Government investigations irrespective of whether criminal charges are forthcoming cause serious damage to the suspects, which explains a need for their prohibition absent a demonstrable proof of an urgent need. The suspect typically must retain an attorney at substantial expense to protect against false or misleading accusations. The investigation, without more, typically makes the suspect politically, socially, professionally, or otherwise radioactive--which means ostracism, a loss of income, family strife or worse. The suspect's reputation may be irremediably damaged because publicized false or defamatory statements are impossible to scrub from the Internet. And the government is not required to compensate suspects cleared of wrongdoing for any of their damages.

There is no scientifically reliable estimate of the percentage of investigations that lead nowhere and thus gratuitously encroach on privacy and inflict uncompensated losses on the innocent. But a clue is available from the Federal Bureau of Investigation's assessment data. From 2009-2011, the FBI opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search in May 2011 showed that 41, 056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations--a false positive rate of over 95 percent.

The Fourth Amendment's reasonableness threshold to justify searches and seizures is first cousin to the reasonable doubt standard required by constitutional due process to obtain a criminal conviction. Justice John Marshall Harlan observed in In re Winship (1970) (concurring opinion): "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent than to let a guilty man go free." Similarly, the reasonableness standard reflects a belief that it is better to give privacy premium protection than to have all crimes detected and prosecuted.

Congress should enact a Privacy Protection Restoration Act that pays homage to the centrality of privacy to self-government and a liberty-centered constitutional universe. It should provide:

"A person may assert as a defense in any proceeding alleging non-compliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party citizen unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy."

The principles behind the PPRA should inform deliberations on "The Law Enforcement Access to Data Stored Abroad Act (LEADS) to update the Electronic Communications Privacy Act of 1986 (ECPA).

Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft, No. 14-2985 (2nd Cir. filed August 12, 2014). In that case, the Department of Justice is seeking to compel Microsoft to produce emails located on servers in Dublin, Ireland.

LEADS would authorize the government to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. That is troublesome because reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. LEADS' authorization to use search warrants to retrieve information about United States citizens stored abroad seems a cure worse than the disease.

Moreover, are they essential to law enforcement?

The Department of Justice has no documented proof that they are. LEADS should not create a precedent that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government's law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, non-speculative evidence that the authority will be necessary in a significant number of cases to prosecute significant crimes.

The privacy of United States citizens is too important to compromise absent demonstration of an urgent government need of the highest order.