What is old is new again. Government surveillance is in the news, again. The cycle started with President Trump alleging former President Obama “wire tapped” Trump Towers. The cycle continued when Wikileaks released a trove of documents relating to the Central Intelligence Agency’s hacking tools.
Whether President Trump’s allegations have merit, or whether they are baseless should not matter. Whether the CIA spied on United States’ citizens or whether it did not should not matter. What should concern citizens is the government’s ability to spy on them.
Consumers place confidence in the ability of a manufacturer, whether Apple, Google, or others, to secure electronic devices from prying eyes. Gone are the days when secure storage meant purchasing safes, lockboxes, or lockable file cabinets. Now, secrets are hidden within complex strings of ones and zeros. The most secure electronic systems cannot offer perfect privacy, but operate to obscure meaningful data better than the competition.
Technology can help obscure meaningful information. Technology also provides government increased access to a citizen’s private life, habits, and private thoughts. Instead of serving warrants and physically searching houses, computers, and other tangible items, government officials can remotely install malware, access electronic devices and seize photographs, document files, and contact lists. The Vault 7 revelations, along with Edward Snowden’s prior leaks, demonstrate the government can remotely activate microphones and cameras embedded in electronic devices, including televisions. The government can turn all types of devices, including televisions, into spying tools.
Assuming the government follows proper procedures, it has a number of options minimally to comply with Fourth Amendment warrant requirements if it invokes “national security” as an excuse for surveillance. The Foreign Intelligence Surveillance Act (FISA) provides the executive branch broad leeway when conducting surveillance for national security purposes. The first option permits the President to authorize warrantless surveillance in certain circumstances. The second options allows the Attorney General to authorize warrant applications in other circumstances.
Both warrantless and warranted surveillance are classified. FISA requires the Attorney General to submit semi-annual reports to Congress. Those reports, though, do not need to contain detailed information. The reports need only list the total number of applications, the number of applications approved, and the criminal cases where information gathered is used.
Technology does not just provide governments increased access to a citizen’s private information; it also provides the government the ability to conceal any unauthorized access. The government can spy on citizens without even the most savvy technology expert knowing. And if the government believes it can completely avoid detection, or make it look like a foreign government was behind a hack, why should it apply for warrants? After all, the government could attribute the information gleaned to other sources, just as it has with cell site simulators.
Government surveillance relating to national security poses a unique threat compared to other criminal investigations. The president possesses significant authority to investigate foreign threats. The exercise of that authority, though, threatens U.S. citizens’ First Amendment freedom of speech rights. When conducting surveillance for national security purposes, it is likely the government will both record protected speech and will use its authority to monitor groups with politically incorrect viewpoints.
Well before technology permitted widespread surveillance, Supreme Court Justice Powell wrote,
“History abundantly documents the tendency of government—however benevolent and benign its motive—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’”
Government surveillance, of political right or political left groups, makes people think twice before speaking contrary to the political establishment. State surveillance of Black Lives Matter allegedly chilled members’ desire to engage in political discourse “about the issues of our time.” Similarly, surveillance of Trump officials was used to impeach the credibility of Lt. Gen. Flynn, attack Attorney General Sessions, and generally to delegitimize President Trump. Progressive groups, right leaning groups, and individuals in the government who threaten its power are equally subject to government surveillance and potential that surveillance will be used to silence their dissent.
Government may use technological advances to operate on the edges of Constitutional permissibility. The threats government surveillance pose to First Amendment freedom of speech rights should overshadow any discussion on the propriety of the surveillance state, just as they did before the proliferation of modern technologies, such as the computer and smartphone.
The Fourth and First Amendments are inexorably linked. Ignoring one will threaten the other. In the words of Justice Powell, “The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”
Jonathon Paul Hauenschild, J.D., is a technology policy analyst. He is the founder and principal of Franklin Adams & Co., LLC.
The views expressed by contributors are their own and are not the views of The Hill.