Constitution Day 2013

To Keep Our Constitution Relevant, We Must Not Become a “Collect it All” Society

We’re at a crossroads today. Our Constitution has been in effect for more than 215 years, and has stood up remarkably well. But as our lives change, its application needs to adapt or the document risks becoming an empty shell. This is especially true in the area of privacy; today, if we take no action, we are likely to lose a significant part of the privacy protection that our Constitution (as well as our culture and traditions) has always afforded us.

The reason is the information technology revolution that we are all living through. The Constitution’s Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects” except when the government obtains a warrant based on probable cause. Our privacy interest in our papers and effects—and their modern electronic equivalent—has not diminished even though we store these things in different forms and in different places than the Founders did. The “papers and effects” of someone like Thomas Jefferson—his correspondence, financial and medical records, etc.—were likely to be stored in his library. In fact, not just his records but most of his actual financial, social, and medical life itself took place within the boundaries of Monticello.

Today, our lives have become computerized and moved outward. In many areas, technology has made it possible to monitor and record the smallest details of what we do—our every movement, our every purchase, and our every communication. Yet we have just as much need for fundamental privacy protections as did Americans in Jefferson’s day.

If we do nothing, there should be little doubt that these new technological capabilities will be exploited to the limit by government agencies. We have learned just how sweeping the NSA’s surveillance programs are—for example keeping records on the communications of every American. If the NSA needs a slogan, it should probably be “collect it all.” That has apparently been the agency’s approach to its mission in recent years. But the issue is broader than the NSA. Many police departments, for example, are using automated license plate recognition cameras to record location information not just on wanted vehicles, but on everybody who drives a car. Records of a person’s location are potentially very sensitive and private information, revealing all manner of things about our lives, how we live them, and who we share them with.

If we accede to those who argue we must “collect it all,” we should not be surprised when that same philosophy is extended to our financial transactions, hotel records, internet searches, video camera images, medical information, and anything else you can think of.

Throughout the history of our civilization, we have always limited the power of the authorities to intrude upon our private lives without evidence that we’re involved in wrongdoing. But what we’re seeing now is an argument that just because we have new technologies that make it easy, we should allow the government to build up a sea of information on everybody to have on hand just in case investigators want to “swim through it” on a particular investigation. Some also want to assign computers to sift through all of this information searching for signs of “suspicious” behavior. It may be computers that are watching us, but we’ll be watched just the same—with all the same potential for bad consequences should some algorithm make an error, or reach a conclusion based on bad data, or misinterpret what we’re saying or doing.

Storage of all this information also gives the government a frightening new power that it has never had before: the power to hit “rewind” on our life and see the history of our movements, transactions, and communications—to turn our life into an open book. That is an enormous power that no government should have over its people.

As Justice Harlan observed in 1971, words are “measured a good deal more carefully and communication inhibited” when we suspect we’re being monitored, and if we allow such monitoring to become prevalent, “it might well smother that spontaneity—reflected in [the] frivolous, impetuous, sacrilegious, and defiant discourse that liberates daily life.” If we allow ourselves to become a society in which our every move is recorded, we’ll find ourselves living not in the same freewheeling country we’ve always known, but another country, one that we might not much like.

If our Constitution is to protect the degree of privacy that the Framers expected—the privacy that we still need today—it will have to incorporate protection against such mass collection of information about Americans without a warrant. We need to insist upon it.

Jay Stanley is Senior Policy Analyst at the American Civil Liberties Union and editor of the ACLU’s “Free Future” blog on privacy and technology policy.