Is Privacy A Right Or A Privilege?

Steve Sherman
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Posted: Jan 20, 2016 12:46 PM
Is Privacy A Right Or A Privilege?

Many people feel they have a right to privacy, but do they? Does the Constitution protect the notion of privacy? Well yes and no. The general right to privacy is derived loosely from three places in the Bill of Rights and the 14th Amendment known as The Liberty Clause. None of them are enough to protect privacy in the modern age.

The 1st Amendment protects privacy of beliefs among other things like speech, press, religion, the ability to meet peaceably, and petition the government. The 3rd Amendment protects your home from being taken over by the government. The 4th Amendment protects your stuff. Basically, it states you have the right to be secure in your person, your house, your papers, and effects from unreasonable search and seizure. It declares things like, probable cause and warrants, must be issued to break your “right” in a particular instance and in a certain location. This is a big one. And lastly, the 14th Amendment says that no person may be deprived of life, liberty, or property without due process.

These rights guaranteed within our founding documents don’t live up to our need for privacy in the modern age. Where does email fall in there? Maybe it could be protected with the 4th Amendment, but it travels over servers and even in and out of other countries. Did you ever see the police taking someone’s garbage from the curb to look for clues? Once it is not on your property, it’s not your garbage anymore. It’s free game. Our emails travel all over the world electronically.

Ask Hillary about servers and emails. I bet she’d vote for a little more privacy right now. In her case there is probable cause and there are warrants forcing her to turn them over. The problem is we don’t have strong enough laws that protect the average citizen from being abused by the powers that be.

I’ve done a fair amount of research and written about this several times. The only piece of legislation that will even begin to bring us into the modern age of privacy protections is the LEADS ACT (Law Enforcement Access to Data Stored Abroad Act). Sounds exciting doesn’t it. Well it’s not. It’s boring, until it’s your privacy that’s wronged.

Where did the LEADS Act come from and why is it important? Here’s the short version.

DOJ v. Microsoft

The Department of Justice opened an investigation into a drug-running operation, it demanded that Microsoft turn over emails housed in Ireland on a data server owned, not by the company, but by its Irish subsidiary. Since the material is housed abroad and pertains to an Irish citizen, the federal government has no jurisdiction to demand the material. The company offered to comply with DOJ's demands but only if the government followed the same rules that would apply if they were demanding a paper documents, as opposed to an electronic form of communications. Congress has never authorized the Department of Justice to issue warrants for material outside the reach of U.S. territory but little things like warrants and constitutional procedures now take a backseat to the ever growing demands and power of the surveillance state.

In a case that has implications for all Americans, and for anyone willing to use an American company to house their data in the cloud, the issue ended up in court with the DOJ arguing, "What’s yours is mine."

Sen. Orrin Hatch (R-UT) is a stepping forward in protecting privacy in the digital age while setting parameters for the government to get the information they need in a criminal investigation.

The LEADS ACT is bipartisan. One of the bill's Democratic supporters, Sen. Chris Coons (D-DE) succinctly described the thrust of the issue, saying "Law enforcement agencies wishing to access Americans' data in the cloud ought to get a warrant and just like warrants for physical evidence."

The government’s position that ... warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This not only hurts our businesses’ competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners."

Privacy in your emails is just as important as in your home. The fact that we are electronically global means we need protection abroad as well. It’s simply time to clarify the rules for law enforcement and citizens alike. Here is an opportunity to protect privacy.

Will congress do that? Probably not without some coaxing. This piece of legislation can and should happen this year. Ask your Senator or Congressman about it. Or if you happen to run into a presidential candidate and want to get them off their talking points, ask them where they stand on the LEADS Act. They may stare at you like a deer in the headlights, but at least you brought up something intelligent with bi-partisan support that our country really needs.