Greg Morin, Columnist
This past Friday (December 27) a federal judge ruled that it is perfectly fine for the NSA to collect and review your phone and Internet records ( HYPERLINK “http://goo.gl/Q4LI4Q” http://goo.gl/Q4LI4Q) . Why is that? Well, those records don’t actually belong to you. This ruling is consistent with an interpretation of the 4th amendment protections against unreasonable search and seizure known as the “3rd party doctrine.”
Under this doctrine anything you disclose to a third party is no longer yours and therefore loses all expectation of privacy. Since it is no longer private the government has free reign to sink their teeth into it without any of those annoying justice-impeding anachronisms known as search warrants.
As with all government propaganda there is a thin veneer of truth that shamelessly attempts to obscure the larger lie – but these truths are about as effective in that goal as Miley Cyrus’s underwear are in making her appear demure in her Wrecking Ball video.
Yes, if you disclose something about yourself to a third party that information is technically no longer strictly private (private meaning known only to yourself). However what eludes this judge and those before him is that it is possible to convey private information to a third party under the protection of a contract. The privacy policies of some companies inform their customers how the company will and will not use information collected in the course of the business relationship.
This establishes a reasonable expectation of privacy concerning any information stipulated to remain private. Therefore the 3rd party doctrine does not apply (even though the government wishes otherwise) in those situations where the consumer has a reasonable expectation of privacy per agreement with thethird party.
It would appear the mantra of the government is that expediency in catching the “bad guys” trumps all other concerns. The judgment in this case is moving this country backward. Back to the 18th century that is.
Back then the use of the “general warrant” by the British rulers was commonplace. A general warrant is distinguished from other types of warrants (i.e. arrest warrant, search warrant, etc.) in that it permits the holder of such warrant to pretty much do anything they want. They can search anything, anytime, anywhere and arrest anyone for any reason.
If the principle of the 3rd party doctrine is applied consistently in future cases then it means the federal government has a general warrant to search anything not in your house. There is therefore no barrier to the government demanding the bulk disclosure of: patient records from doctors, purchase records from credit card companies, banks or other businesses, or school records from universities.
This data could then be placed into a massive database and “mined” in order to uncover patterns and connections in a futile attempt to flush out the “bad guys.” Today the bad guys are the terrorists, the drug dealers or organized crime (ironically all entities created as a result of government interference). Perhaps tomorrow the enemies will be anyone who dissents from the approved public opinion of his or her masters, that is, The State.
Someday soon the world’s mightiest super computers will employ predictive algorithms upon this ocean of data as they attempt to predict undesirable future behavior. Department of Pre-Crime at your service.
Perhaps the above sounds a bit far-fetched, but remember, there is nothing in the arguments currently employed to justify mass collection of data that would preclude these alternative forms of data collection. Just ten years ago the currently revealed mass collection of data would have seemed far-fetched. Just imagine what they can do ten years from now. In this brave new world that is fast approaching our freedom will be instantly curtailed at the pleasure of any investigatory bureaucrat who doesn’t quite like our answers as they relate to our algorithmically questionable activities. If you become ensnared in this trap then you’d better hope you have an alibi. Innocent until proven guilty will soon be replaced by harassed until proven innocent. Greg Morin is a member of the Libertarian party and CEO of Seachem Laboratories located in Madison. Constructive comments are welcomed to this paper or at gregmorin.com