by Bob Barr
Privacy is one of the pillars of a free society. In fact, as renowned philosopher and writer Ayn Rand noted in The Fountainhead more than seven decades ago, privacy is the essential foundation of a civilized society, without which individual freedom cannot be maintained. Yet, when it comes to protecting this essential cornerstone of our society, Congress consistently falls short.
Whether controlled by Democrats or the GOP, congressional committees put on great shows. They invite all the big names in Big Tech to a hearing, where members pose eloquent soundbites about “privacy,” “security,” and, of course, “profiting from user data.” Yet, as for doing something meaningful to protect individual privacy rights by legislation or through oversight, Congress is little better than the CEOs they verbally harangue.
It is beyond question that private companies, including Big Tech players like Google, Facebook and Twitter, use the vast databases of information they accumulate, to hawk products and develop user “profiles” for commercial benefit. It is also clear that the power they wield can be, and demonstrably has been abused to harm individuals, often because they hold political views at odds with the so-called “Lords of Social Media.”
At the end of the day, however, it is only government that can use such databased information to put someone in jail. And it is here – at the intersection between data accumulation and government power – that Congress repeatedly fails to guard against abuse.
Ever since the Bill of Rights was ratified in 1791, the government has been bound by the Fourth Amendment, which was designed and intended to limit how law enforcement may invade a person’s privacy and gather information that ultimately could put them in jail (or worse). Over the decades, however, government has proved itself extremely creative in circumventing the Amendment’s restrictions, including in recent years turning to private companies like Google for assistance.
One of the most recent and cleverest vehicles employed by law enforcement to slip by the Fourth Amendment’s requirement of specificity as to the person to be searched and the information to be gathered, is something known as a “reverse search warrant” or a “geofence warrant.” These can be used, for example, to scoop up data about all cell phones within a certain geographic area, or to identify all cell phone users who accessed a certain site during a particular time period.
Key to such extremely broad (and constitutionally troublesome) warrants, is that law enforcement agents have the cooperation of a private company, like Google, which can provide the data being sought. Unfortunately, most tech companies that maintain this data or that have access to it, are happy to stay on government’s good side and readily comply with such requests, even though they clearly do not meet the Fourth Amendment’s requirements.
This is precisely what Google did in July in an arson investigation; cooperating with such a warrant by supplying police with information of all users who searched for a specific address.
Sadly, efforts by the handful of members of Congress on both sides of the political aisle wanting to place statutory limits on these newfangled tools designed expressly to thwart the Fourth Amendment, consistently fail to garner the votes necessary to send a bill to the president for signature.
In one of the more recent displays of Congress’ unwillingness to protect individual privacy, last May the Senate failed to pass a simple amendment to the USA FREEDOM Reauthorization Act, which would have shielded private search data from warrantless search by federal law enforcement.
That vote was not the first time the Senate failed to stand up to Big Tech and to rein in overly zealous law enforcement demands, and it is certain not to be the last.
Whether the Supreme Court ultimately will throw a much-needed lifeline to the Fourth Amendment, by ruling that such “reverse warrant” fishing expeditions are unconstitutional, remains to be seen. It is a concern, however, that should be posed in some meaningful way to Judge Amy Coney Barrett before the full Senate votes to confirm her as a Supreme Court justice later this month.
Bob Barr represented Georgia’s 7 District in the U.S. House of Representatives from 1995 to 2003 and was the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.