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Restoring a law from 1789 may be impossible with technology from 2013


At the Restore the Fourth protest in New York City on Thursday, I witnessed hundreds of people spend their holiday marching the hot streets of the Big Apple, pushing for a cause they truly believe in: Reigning in NSA and other government surveillance, which many Americans believe is a clear violation of the U.S. Constitution’s protections against “unreasonable searches and seizures.”

As a privacy advocate, I looked upon the scene as a solid demonstration of democracy in action, a fight for the government to simply follow the most basic rules that our country has: The Bill of Rights. The demands of Restore the Fourth are so basic, so innocent, and so clearly fundamental to the founding principles of the United States, that one struggles to comprehend that anyone, from grandma to President Obama, could oppose them.

And yet, I fear this is a war we cannot win. Not because Congress or the courts will fail to enact any meaningful change – though that seems unlikely – but because the nature and mechanisms of the digital age have so thoroughly obscured the protections provided by the Fourth Amendment that it may be impossible to have both the technology we rely on and the rights we deserve. Surveillance no longer means what you think it means.

Do not mistake this for a defeatist attitude – I am as hopeful as anyone that Restore the Fourth and other similar citizen activism efforts will prove just how capable America is when confronted with monumental challenges. And I will continue to support such efforts, both in my private life and through this public platform at my disposal. But the hurdles standing in our path are significant.

When a search is not a search

The foremost problem here is that the Fourth Amendment (which you can read here – it’s short) does not protect Americans from the bulk of what the NSA is reportedly doing because it is not, according to what we know so far, an actual search, as defined by common law. Remember, the NSA is mostly (but not entirely) collecting metadata of Internet activity and phone calls. Metadata is all the information that surrounds communications, but not the communications themselves. That means the To, CC, BCC, From, and subject lines of an email; that means the outgoing and incoming numbers of phone calls, and the call durations. 

Metadata can, when used by a skilled professional with a well-tuned algorithm, reveal more about a person than the text of an email or a recorded phone call ever could.

The Fourth Amendment, according to the courts so far, protects none of the information listed above because we have no “reasonable expectation of privacy” for this data. Anyone at Google or Verizon could see that info, which means the NSA can scoop it up without having to get a search warrant first. So we are not going to see this type of data collection stop, nor will the NSA, FBI, or other government agencies delete the metadata they already have.

One reason privacy advocates see this as a problem is that this metadata, when combined with other metadata, can tell observers a lot about a person’s life – where you go, who you know, even what health problems you may have, and whether your activities are suspicious when compared to the activities of known criminals. Data scientists will tell you that metadata can, when used by a skilled professional with a well-tuned algorithm, reveal more about a person than the text of an email or a recorded phone call ever could.

Restore the Fourth

So to stop this potential invasion of privacy, the courts will have to rule that Big Data techniques are a violation of the Fourth Amendment, or legislators must outlaw certain kinds of algorithms – something I have not seen a single Member of Congress suggest, let alone make moves to enact. And why would they? Doing so could potentially criminalize much of the technology that fuels the Web itself – the algorithms used by online advertisers to customize which ads you see, or Facebook to show you posts that you might enjoy. In other words, the companies that make the Web, and the people that use the Web, would find their interests entirely at odds. We will not see a Stop SOPA moment for that legislation.

Other loopholes

On top of the flimsy protections for metadata, we must confront two other glaring issues. First, the Fourth Amendment may not protect social media content at all. As the Electronic Privacy Information Center’s (EPIC) Alan Butler recently told me, “law enforcement has taken the position that once an item is ‘shared,’ the user has no reasonable expectation of privacy and the Fourth Amendment doesn’t apply.”

Technology all but guarantees that they will be watching us in ways neither we, nor lawmakers, can even begin to imagine.

Second, our computer privacy laws currently allow broad collection of other communications and private data without a search warrant. The Electronic Communications Privacy Act (ECPA), enacted in 1986, allows law enforcement to retrieve emails and files stored on the cloud with only a subpoena, as long as they are 180 days old or more. While some states have begun to add further protections, efforts to do the same at the federal level remain stalled.

Both of these issues likely have an easier fix than the problems surrounding metadata use. But that does not mean we are close to mending them, nor do we have any guarantee that we ever will.

Finally, the rapid advancement of technology makes it increasingly likely that the problems we face today will swell right along with advancements in computing power and the plummeting cost of storing unfathomable amounts of data – the two mundane factors that make the NSA’s surveillance efforts possible at all. Just as ECPA seems outdated now, so too will whatever new protections we might put in place today – only much more quickly.

On top of all this, we have the political problem of enacting any meaningful change. Recent polls show that Americans are relatively split on how they feel about NSA surveillance, especially when it comes to preventing terrorism. I heard repeatedly at the Restore the Fourth march that we shouldn’t pay much attention to those polls because people’s answers change depending on the way you ask the question, “How do you feel about the federal government spying on you?” But we must pay attention – if most people are ambivalent or supportive of such surveillance, nothing will change, no matter how many marches we have.

The NSA’s activities are far more complicated and problematic than the issues I’ve outlined here. And there is progress we can make, starting with full disclosure of the extent to which the NSA is gathering information on Americans, and meaningful judicial oversight that does not take place in secret, and provides more than a rubber stamp. But even with that transparency – even if we know everything – the technology available today and in the years to come all but guarantees that they will be watching us in ways we, and lawmakers, can only begin to imagine.

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