The Bill of Rights has taken a beating since 9/11.
In the name of “security,” the government has claimed vast — almost unlimited — authority to monitor everyone (phone calls, e-mails, web browsing history; anything online) on the theory that someone might be up to something.
This is done without even the suggestion of specific probable cause — and often without us even knowing it’s being done.
Some lawmakers — among them Sen. Orrin Hatch of Utah — think it’s time to stop doing it. At least abroad.
Yes, you read that right.
Outside the United States.
The federal government — in addition to randomly spying on Americans within the United States — has also been trying to spy on Americans outside the U.S.
Well, on their data — if it’s stored outside the U.S.
Servers — where online data is stored — are often located in foreign countries. The federal government wants access to this data, irrespective of the Fourth Amendment’s restrictions and irrespective of the laws of the foreign country in which the servers are physically located.
Under existing law — an ancient law called the Electronic Communications Privacy Act of (wait for it) 1986 — the government can filch through our e-mails if they are more than 180 days old. Back in ’86, this wasn’t much of an affront to online privacy because the Internet as we know it did not exist. And until recently, server capacity was limited and most old e-mails were automatically deleted before 180 days, to free up space for new ones. But server capacity today is effectively unlimited — and e-mails are stored indefinitely.
ECPA is as dated as parachute pants.
The government has also been pressuring American companies that store data abroad to hand over that data even when doing so would violate the laws of that country.
This places companies that do business in the U.S. and foreign countries in an impossible Catch-22 situation. On the one hand, the federal government leans on them to violate the privacy of the people whose data it has in its possession. On the other hand, if the company knuckles under to this pressure, it may entail violating the privacy laws of the country in which the servers are located — inviting criminal prosecution under that country’s laws, and other repercussions as well.
It’s damned if they do — and damned if they don’t.
And an affront to basic civil liberties, too.
The Law Enforcement Access to Stored Data Act sponsored by Sen. Hatch in the Senate (S. 512) and Tom Marino in the House (H.R. 1174) would restore Fourth Amendment protections by requiring specific — and individualized — probable cause, plus a search warrant (rather a mere subpoena) before any attempt is made to access people’s private data.
Second, it would formally enshrine respect for foreign countries’ privacy laws. No company would be compelled to hand over data stored in a server located in a foreign country if doing so would be against the law in that country.
Both steps are not only reasonable — they’re the right thing to do.
It is a bedrock principle of America legal tradition that people are individuals — and that they are to be presumed innocent as individuals rather than treated as part of a presumptively guilty group. This business of government bureaucrats filching through people’s private e-mails and so on at their whim, at random — and dragnet-style, without any specific reason — is profoundly un-American and must be stopped.
Just as it’s not legal for cops to randomly barge into anyone’s home they and have a look around, so also it ought to be illegal for the government to do what amounts to the same thing via computer.
An unwarranted, probable cause-free search is an unwarranted search and a violation of the Fourth Amendment’s plain intent — whether the search is physical or electronic.
Similarly, if the U.S. expects its laws to be respected by foreign companies that do business here, it must learn to respect the laws of foreign countries in return. To not do this invites ugly retaliation not only against American companies doing business abroad, but the data of Americans stored in countries abroad.
The recent Sony Hack comes to mind.
What comes around often goes around.
The LEADS Act, it is argued, would make it more difficult for the government to go after Bad Guys. But the government has produced no evidence that’s true — and the mere assertion ought not to be sufficient to throw American’s civil liberties under the bus.
Hatch and other backers of LEADS are merely trying to restore a balance that’s been way off kilter for more than a decade.
And arguably, since 1986.
Eric Peters is an automotive journalist and author. His next book, “Doomed,” will be available this winter. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
