It has been nearly 65 years since George Orwell published his classic, dystopian novel 1984, describing a world where technology-enabled government intervention dominates all life, where the god-like “Big Brother” is always there, always aware, demanding devotion, not just in act, but in very thought; watching your every move through the ubiquitous “telescreens”, searching for evidence of “thoughtcrimes” against the state.
When it was published in 1949, Orwell’s 1984 was purely science fiction, an abstraction from reality, easily dismissed as unworkable, nothing more than a cautionary tale against the brutality of technology-supported totalitarianism. However, in our time, in this day and age of exponential growth in data capture, storage and retrieval technologies, the realization of Orwell’s great fear – the imprisonment of individual will – is closer than ever.
Following the Edward Snowden debacle (I am still amazed that one person could access and skip town with, apparently, all of our national security secrets), the National Security Agency (NSA) was forced to admit that it is systematically seizing and storing personal phone data on every single American citizen, without probable cause, without specificity, and without a warrant. The NSA justifies the program by relying on a single 1979 Supreme Court ruling that says that once Americans turn over personal data to a phone company, they lose their claims to privacy.
Gratefully, U.S. District Judge Richard Leon ruled this week that the NSA’s unprecedented metadata collection was “almost certainly” unconstitutional, setting up an inevitable showdown between the NSA and the American people in the United States Supreme Court. The Supreme Court should not only affirm Judge Leon’s ruling, but also clearly re-affirm the Fourth Amendment — the Constitutional right to privacy — in a technology driven world.
For a moment, let’s assume that the NSA is correct in arguing that individuals lose their right to privacy when they turn over personal information to phone or other service providers. In our continuously connected existence, what information do we actually withhold from technology providers? Our smart phones, tablets and computers contain text messages, emails, pictures, videos, documents, voice memos, Internet search requests, web-clicks, online purchases, calendar items, financial information, and hundreds of other types of data. We routinely transmit this data through technology companies, even backing up our data in “the cloud” hosted by additional vendors, all the while clicking through the “legal notice” pop-ups.
If the NSA’s argument is correct, if we lose the right to privacy when we share information with telephone providers, wouldn’t we also surrender that right for all types of service providers we transmit data to? For all we know, the NSA is not just collecting phone call histories, but all kinds of other data using the same legal rationale.
Last week, prior to Judge Leon’s ruling, senior leaders from eight large technology companies — including AOL, Apple, Facebook and Google — published an open letter to Congress and President Obama, calling for a complete overhaul of the federal government’s surveillance activities. These companies want Congress to codify limitations on the government’s ability to compel service providers to disclose customer data, beef-up oversight of intelligence agencies collecting information, and to allow service providers to notify their customers about government demands for information. This is a pretty clear repudiation of the NSA’s metadata collection activities by those companies pressed into the intelligence gathering business against their will.
Orwell’s 1984 powerfully illustrates that when there is no right to privacy, there is no foundation for individual liberty. It’s past time for the Supreme Court to re-affirm the constitutionally guaranteed right to privacy by prohibiting blanket collection and storage of consumer metadata.
Dan Liljenquist is a former state senator and U.S. Senate candidate.