Intel founder Gordon Moore once predicted that computing power would double every two years, an observation that would eventually be dubbed Moore's Law and used to show just how quickly technology advances.
Technology is no doubt rapidly evolving as Moore's Law says, but the laws that govern technology often take decades to catch up. In protecting individual privacy, preventing government overreach, and dealing with terrorist threats, our government has lagged.
In a time of continuing concern over balancing personal privacy and national security, laws like the 1986 Electronic Communications Privacy Act that govern stored communication simply aren't up to snuff. Many arms of the federal government use general warrants – warrants not aimed at a specific person – to collect massive amounts of data in blatant violation of the Fourth Amendment. Often, this data is collected against the will of the companies who store them and often without probable cause against the users.
An ongoing battle between the federal government and Microsoft has put this all on display and revealed many of our system's current faults. To change this, Congress should look to passing things like the Email Privacy Act, a bipartisan bill that will protect customer data and help law enforcement wade through the morass of information they collect when seeking to root out potential threats.
The typical argument in favor of allowing the federal government broad authority on this issue is that it allows them access to a broad swath of necessary information. In other words, the more information, the better. But while this is a convenient excuse for mass data collection, many believe that intelligence agencies are overwhelming themselves with too much information to keep track of credible threats. In many cases, the federal government is warned about a suspect, but then he falls through the cracks.
In the case of the Pulse nightclub shooter, the Boston marathon bombers, and the shooters in Garland, Texas, in 2015, warning signs abounded. Omar Mateen had been interviewed twice by the FBI after being reported by members of his local mosque. The CIA and FBI were warned about the Tsarnaev brothers long before they committed their heinous acts. One of the shooters in Garland had previously been arrested.
So if the government had known about them, why weren't their plans thwarted? One possible explanation is that the sheer number of false leads that are obtained through use of mass collection – caused by outdated laws like the ECPA – had distracted from true threats. Mass collection of emails can lead to thousands of false leads, sending law enforcement running in circles. The Email Privacy Act will not only help solve this problem but will strengthen our Fourth Amendment protections from unreasonable search and seizure.
Introduced by Reps. Jared Polis, D-Colo., and Kevin Yoder, R-Kan., this bill has wide bipartisan support. Similar legislation passed the House last year by a vote of 419-0 with an astounding 300 co-sponsors. After failing to advance in the Senate because of issues related to pork barrel spending, this bill finally has a chance this session to become law. By passing it, Congress will help protect businesses and consumers from government overreach and strengthen our national security by allowing law enforcement to focus on credible threats, not black holes of information.
With such wide support for similar bills in the past, this could be an easy win for the Trump administration. By keeping our federal government from being overwhelmed by false leads and by preventing unconstitutional general warrants, we'll be able to rein in big government and help modernize the laws governing our system in the process.
Government will never advance as fast as Moore's Law, but after three decades of stagnation, it's finally time to catch up.Patrick Wohl is a former campaign staffer for Kentucky Sen. Rand Paul, Missouri Gov. Eric Greitens, and Illinois Gov. Bruce Rauner.
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