Chris Coons

September 18th, 2013

Digital surveillance debate echoes founders’ struggle over illegal search

chriscoonsWhile the words of the Bill of Rights have not changed in the more than 200 years since their ratification, their meaning, their relevance and their impact have changed significantly.

Like the soaring rhetoric of the Preamble and the Declaration of Independence before it, it took many years for the simple and powerful principles laid out in the Bill of Rights to be tested in court cases, and for the Founders’ vision to be made real and relevant. Their struggle to balance liberty and security, and privacy and protection, mirrors our own modern-day debate.

It is a testament to our Founders’ genius that when Americans consider the appropriate balance between personal privacy and the government’s national security imperative, the Bill of Rights remains our guide.

It may be counterintuitive to think that the ideas of men living in a quill-pen world could be relevant to protection of email or cell phone calls from unwarranted government snooping, but the American public’s justifiable concern over our government’s extensive digital surveillance programs is startlingly reminiscent of our Founders’ revolt against the British colonial practice of general searches and seizures.

In colonial times, British authorities issued “writs of assistance” to enforce revenue laws. These general warrants gave officials unlimited, permanent authority to enter any house for the purpose of searching for and seizing illegal goods. Two decades before he represented Delaware at the Constitutional Convention, John Dickinson wrote that the broad, unchecked powers granted by these writs were “dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.”

So dangerous was this invasion of private property that our Founders wrote and adopted the Fourth Amendment to protect citizens from unreasonable searches and seizures. The amendment outlaws the use of general warrants by requiring that all warrants issued be specific in nature and based on probable cause.

Delaware’s own state bill of rights, which predates the nation’s by nearly a decade, included a specific bar on general warrants and helped inspire the Third Amendment, which protects Americans from the quartering of troops in their homes. It reinforced Dickinson’s argument that the Founders tried to preserve a sphere of privacy in the homes of citizens.

Today, the protections guaranteed by the Fourth Amendment are being challenged by a technological development our Founding Fathers could never have foreseen – general searches, conducted online, that are broad in scope and yet invisible to ordinary citizens. In this uncharted digital territory, our nation’s law under the Foreign Intelligence Surveillance Act — also known as “FISA” — has granted the government the modern equivalent of “writs of assistance.”

The law, as applied and practiced, permits the government to collect and store intercepted communications without clear legal limits on what can be done with this information and without sufficient safeguards for protecting Americans from unwarranted surveillance. The courts tasked with approving government requests to expand surveillance authority do so in a secretive process where only the government agency collecting the data is heard. FISA courts have the authority to approve searches without the legal basis for their decisions being known or reviewed.

It is unnerving that not even the Congress elected and expected to oversee these programs has full access to critical information detailing the scope and impact of domestic surveillance activities on the privacy of American citizens. As a result, Congress has failed to be an effective check on these activities to ensure they do not infringe upon Americans’ Fourth Amendment rights.

Reconciling this shortcoming with our security needs is a challenge. The Senate Judiciary Committee, on which I serve, worked hard to address the lack of sunlight on these activities late last year, but Congress cast aside that work and instead opted to remain in the dark.

We live in a dangerous world that necessitates a robust defense and intelligence capability to defend us, and the people charged with protecting our national security are doing their important jobs, but now Congress must do its job by passing legislation that will introduce more accountability and transparency into the surveillance process.

One bill, the FISA Accountability and Privacy Protection Act, would demand the government be more transparent about the impact of surveillance authorities on Americans’ privacy, allowing Congress to evaluate these programs with a complete understanding of their magnitude.

Another, the FISA Court Reform Act, would place a special advocate in the courtroom to argue for legal interpretations that minimize the scope of intrusion into Americans’ privacy, ensuring that FISA courts asked by the government to expand surveillance authority have the benefit of both sides of the argument.

I’m proud to have sponsored both of these measures, each of which can help ensure that the government is able to protect the American people while still upholding and preserving their fundamental right to privacy.

Our Founders would expect and accept no less.

Senator Chris Coons (D-DE) is a member of the Senate Judiciary Committee.

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