My life's an open book - Chapter I
Estimated read time: 12 minutes
More than two centuries ago, a handful of great forward thinkers gathered in a locked room to put to paper revolutionary ideas no one but a traitor to the establishment would dare pen. Despite the summer heat, they locked the windows shut lest anyone on the outside heard their whispers.
When they finished their secret meeting, the paper they held dared speak of inalienable rights afforded every person regardless of their status, wealth, or intellect. In their vision, the common man not only was entitled to the same rights to life, liberty, and the pursuit of happiness as the wealthy elites had, but they also had to be afforded the equal opportunity to exercise those rights. The Declaration of Independence laid the groundwork for the formalizing of the new government of the United States in what we call the Constitution.
Our Constitution detailed many of those inalienable rights generalized in the Declaration of Independence. Freedom of: religion; peaceful assembly; innocent until proven guilty; bear arms; free speech. Even one who hasn't read the Constitution can peal off the rights guaranteed the common man.
Except for one.
Talk about the rights to privacy, and most people sort of understand, but their blank stares tell you they have no clue where in the Constitution we're guaranteed our rights to privacy. That's probably because the right to privacy isn't there...at least not as blatantly and clearly articulated as our many other rights.
But the right to privacy is there. Our Founding Fathers sprinkled the Constitution with specific examples such as banning unreasonable search and seizure, not being forced to house soldiers, and the well known Fifth Amendment - right not to testify against oneself. Professor Linder at the University of Missouri-Kansas City School of Law has written an extensive website on constitutional law and he explains the concept of our rights to privacy more eloquently than I can.
Throughout our history, courts have repeatedly upheld the concept of our right to privacy. In his famous dissent of the US Supreme Court case Olmstead vs United States (1928), Justice Louis Brandeis summed up the right to privacy concept succinctly as the "right to be left alone." (His strong support for one's rights to privacy can be traced all the way back to 1890 in an article he co-wrote for the Harvard Law Review, an article recognized as one of the most influential essays in American law.)
Ironically, Justice Brandeis' dissent in 1928 was based on what he saw as an abuse of new technology by the government. The new technology? The telephone. The Supreme Court ruled, with Justice Brandeis dissenting, that wiretapping of a telephone isn't an invasion of privacy nor unreasonable search. Wiretapping is simply "listening."
Fast forward forty years to the 1960's through the Nixon Administration. Times had changed and the general consensus finally caught up with Justice Brandeis' thinking forty years earlier. A series of government abuses resulted in Congress passing the Omnibus Crime Control and Safe Streets Act in 1968 requiring a warrant to obtain a wiretap. The law did, however, contain a loophole. It allowed the President to authorize wiretaps "to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." President Nixon utilized this loophole extensively.
In an attempt to limit the President's authority in light of President Nixon's abuses, Congress passed the Foreign Intelligence Surveillance Act in 1978. In the last forty years, it has been continuously tweaked, amended, expanded, and renewed. Most recently, Trump blasted the FISA as the tool used against him in his Russian collusion investigation. After blasting the "dangerous law," he renewed it a few days later.
Technology has progressed well past the telephone, yet the wiretapping laws haven't even caught up with the technology of the telephone much less the digital technology of cell phones and computers. Our laws are still stuck at the analog, rotary dial-up technology. Ironically, if we listened to Justice Brandeis' definition of our rights to privacy and judged our snooping laws on his simplistic characterization of our "right to be left alone," none of these snooping laws would be on the books today for us to debate. The government wouldn't be able to snoop unless we gave them probable cause as defined in the Fourth Amendment.
Snooping has become big business for the government. The government snoops with impunity and we only catch a glimpse of their illegal snooping when a whistle blower or watchdog group brings it to the public's attention. Border searches are a good example.
An outdated law defines a border zone as an area 100 miles within a land or coastal border. That means about two-thirds of the US population lives and works within a border zone (see map). When the average citizen thinks of "border protection" their attention usually turns to the deserts of the southwest along the Mexican border. Many might even support the Border Patrol and Immigration and Customs Enforcement agents stopping and searching anyone within the 100 mile border zone. It would come as a shock to those same people that if they are in Washington DC, they could be subject to warrantless searches the same as those down in our desert southwest. DC, NYC, and almost all of New England are within the 100 mile border range where our CPB and ICE agents routinely search citizens without a warrant, at least down in our desert southwest.
Citizens headed to Mexico or back are routinely subjected to cell phone searches despite a ruling by the US Supreme Court in 2014 requiring a warrant be obtained before law enforcement can search one's cell phone. The ruling, however, did not cover the CPB nor ICE agents so they routinely search citizens' cell phones without first showing a judge probable cause, as the Fourth Amendment states, and obtaining a warrant. There is no control or oversight to prevent abuses nor anything in place to prevent the government agents from downloading the contents of your phone as they conduct their search.
Once the information is downloaded, you have no recourse to know where the data is being stored nor how it is being used. Odds are you probably didn't even know the government downloaded your profile and are storing it somewhere. The notorious "spy file" Denver police kept on political activists is a case in point. First brought to light by Glen Morris - a Native American activist, who discovered the police had a 16-year "spy file" on him - his file was only the tip of the iceberg.
Our Constitution guarantees every citizen the right to assembly. Implied in that right is the right to freedom of association, a concept the US Supreme Court coined in the 1958 case, NAACP vs Alabama. Alabama tried to coerce the NAACP to turn over its membership list to the state. The NAACP refused fearing its members may face state retaliation for being members. The US Supreme Court sided with the NAACP stating that in the First Amendment right to freely assemble is the implied right to freedom of association. Many other cases during the Civil Rights Era expanded on the idea of the freedom of association that the First Amendment implied.
The Denver police ignored the Constitution and built files on activists attending meetings. Officers combed the parking lots of meetings jotting down the license plate numbers of attendees and cross referencing them with addresses and phone numbers. Neighboring Colorado Springs police officers gathered information on attendees to a peaceful protest and turned over their names and license plates numbers to Denver.
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| NSA Headquarters No one knows what goes on behind all that dark glass... ...not even the people looking out from behind all that dark glass |
The answers to those questions could be very important. Seemingly innocuous information about you in and of itself may not be a big deal. Added with other bits of information and a picture of who you are, what you do, and how you think begins to emerge. That picture may not always be accurate, but the picture could still be used to freeze your bank account, deny you a job, land you on a "watch list", ruin your reputation, and basically make life a hassle for you. And if you think it's the federal government looking for terrorists doing all the snooping, think again. Even small town police forces are using high tech snooping technology to circumvent your constitutional rights.
There are plenty of people out there who value security over rights, but, fortunately, they are not in the majority opinion. The most recent Gallup poll (2015) measuring our attitudes of security versus civil liberties and rights show almost a third of us choose security over protecting civil liberties and rights, but almost two-thirds of us choose protecting our civil liberties and rights over security. Despite the poll that shows we value our civil liberties and rights, only 41% of us say the government is violating our civil liberties and rights in their efforts to keep us safe.
That last number is the telling reason why our government and law enforcement agencies can abuse our liberties and rights and no one challenges them. Instead of 41% believing the government is violating our civil liberties and rights, the number should be 100% or very close to it. The fact someone is monitoring your Internet behavior, scooping up your cell phone calls and location, using cameras equipped with face recognition technology, recording your license plate numbers, forcing you to walk through metal detectors and X-ray machines and even watching or recording you through your laptop (at least they have the technology to do it even if they deny having ever used it) means they have trampled over your Fourth Amendment rights (probable cause, unreasonable search and seizure) among others. You are assumed to be guilty of something and it's just a matter of time for the authorities to find out what that something is. Damn your constitutional rights. We need to protect society from you.
Let's pretend that our government officials and law enforcement agencies place a high value on citizens' civil liberties and rights. Yes, that makes their job harder because they have to prove probable cause before they can start snooping, and then they can only snoop for very specific things. But that standard worked for two hundred years and they're determined to make it work for another two hundred no matter how much more difficult that makes their job. They have had a change of heart and decide to abide by the Constitution and its laws. The government and law enforcement have nothing to fret about. For the low, low price of $19.95, they can buy the information on any citizen they need from data brokers.
The Federal Trade Commission knows who the big nine data brokers are. The data brokers know everything about you - how much you make; where you've been online; how long you spend on each website; what you buy; when and where you're getting married or were maried; what you buy at your local supermarket if you use a loyalty card to receive discounts; your age, gender, marital status, number of children, and their age and gender; what vehicle you own; your political affiliation; how often you vote; how healthy you are even though your medical records are off limits to them...wait...how healthy you are?
Yes. It's called putting the pieces of the puzzle together. If you buy allergy medicine online regularly, you are flagged as an allergy sufferer. If you're buying plus-sized clothing and diet pills, you are overweight. One healthcare provider purchased the information (subscription required to read full article) on three million of its customers it insured. The purpose was to identify potential health risks among their insured so that, as a Blue Cross Blue Shield spokesperson stated, they could send them information on how to make healthier lifestyle choices instead of credit card offers.
Nothing these data brokers are doing is illegal. Their snooping isn't prohibited by the Constitution. The Constitution only details what the government can and cannot do. How companies collect our information and what they do with that data may not be illegal, but most of us would agree it is unethical.
Therein lies the problem. Even if we could convince our government and law enforcement agencies to give up their snooping tactics and play by the Constitution, Corporate America isn't governed by the Constitution and can trample over our rights at will. Legal but unethical, yes, but not nearly as unethical as when one tries to opt out of a data broker's (or any company's) tracking and trading practices. Each broker or company has to be contacted individually and none make it easy for one to opt out. Some will even charge you to take down your information, but nothing prevents them from continuing to collect on other devices you may use that don't have your opt out information.
It is unlikely we'll ever get our government and law enforcement agencies to play by the rules and abide by our Constitution. That doesn't mean we should stop trying, though. Perhaps someone smarter than I will start a simple data mining site that targets our government leaders, bureaucrats, law enforcement agents, and CEOs of Corporate America and share the information legally obtained so they can experience firsthand the serious threat snooping and the collection of metadata poses to the average citizen. Personally, I'd be dying to know who in the White House and Congress has been shopping at Victoria's Secrets on a regular basis.
Hmmm...wonder how many more files on me have been opened up for writing this. I used the word, target, in conjunction with our political leaders. I'm a potential dangerous radical now. I bet the NSA has a best seller in it's database and one of those data brokers is going to sell it to you for low, low price of $19.95 and I won't get a penny of royalty for the story.
We've come a long way since the days when we believed that right to privacy meant the right to be left alone....
TL;DR folks:
The government is watching you and probably has at least one, if not more profiles of you in their database, all obtained unconstitutionally. If the government doesn't have the profile, you can bet more than one company does, all obtained unethically, if not illegally. Your life is an open book for all to read, for the low, low price of $19.95. But wait. Order now and they'll send you a second copy free. Just pay a separate handling fee.
The government and Corporate America know you better than your Mom.
Related Links:
My Life's an Open Book - Chapter II
For your listening pleasure:
Posted by Five Drunk Rednecks
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