June 29, 2016—As the masses swarmed to social media to diagnose the cause of the massacre that occurred in Orlando, there was one debate that received little attention from the mainstream media. This debate was over an amendment to the 2017 defense spending bill, which would have provided protections against the warrantless surveillance of Americans’ electronic communications. The debate over the amendment was framed heavily in the context of national security, and it rekindled the discussion over privacy rights and due process in the digital age.
The legislation of interest, which was authored by Reps. Thomas Massie (R-KY) and Zoe Lofgren (D-CA), would have prohibited the warrantless surveillance of Americans’ electronic communications. Contrary to the talking points of the fear-mongering elite, this amendment would have done nothing more than require intelligence agencies to follow due process when collecting the communications of American citizens. The goal of the amendment was not to impede upon law enforcement procedures, but to protect our rights from the potential of future abuse.
In addition to preventing warrantless surveillance, the Massie/Lofgren amendment would have also protected tech companies from being forced to create “backdoors” into encrypted devices. If you recall, we had a similar discussion when Apple refused to comply with the FBI’s demands to create a “backdoor” to bypass the encryption on the iPhone’s operating system. The FBI eventually withdrew its demands, after revealing that an unidentified source had helped to provide access to Syed Farook’s iPhone. However, we can be almost certain that this issue will resurface in the years to come.
Unfortunately, the Massie/Lofgren amendment failed by a vote of 198-222. Opponents of the amendment used the tragedy in Orlando to gain public support for warrantless surveillance measures; they claim that the amendment would have prevented law enforcement from retrieving critical information on the Orlando short. While this allegation is ultimately false, it is important to realize that these claims are made in an attempt to distort the truth and to steer the discussion away from the issue at hand: the right to privacy.
This is not the first time that the debate over privacy rights has made an appearance in the midst of a terror investigation.
I do not deny the importance of national security, nor do I want to prevent the intelligence agencies from effectively carrying out their duties. National security should always be the top priority of the federal government, and there are certainly times in which certain precautions must be taken to keep our country safe. However, we need to stop making this an argument about national security, and start framing it in the context of the Fourth Amendment of the U.S. Constitution.
The Fourth Amendment was designed to prevent the government from carrying out invasive searches and arbitrarily seizing private property. In order to conduct searches or seize property, it was generally accepted that law enforcement must first obtain a search warrant, which would be granted on the basis of probable cause. Any evidence that was obtained illegally would not be used as consideration in court proceedings. With that said, unless there was sufficient probable cause to suspect unlawful behavior, U.S. citizens could enjoy protections against government intrusion.
With massive advancements in technology and communications, Fourth Amendment protections must be expanded to address the challenges of the 21st century. Most people would agree that it is unconstitutional to search someone’s home without a warrant, so why shouldn’t we provide the same level of protection for private electronic communications? Law enforcement agencies should not be allowed to collect private information without first producing a warrant, and any electronic communications that are obtained illegally should be dismissed in court proceedings.
Unfortunately, the prevailing attitude towards privacy rights can be summed up with the failure of the Massie/Lofgren amendment. We live in a society that is all too eager to trade liberties for security, and fear is used to gain sympathy for policies that encroach further and further upon our freedoms. I will not question the motives of those who voted against the amendment, as I am certain that they are pure. However, it is imperative to point out that even the best intentions have a tendency to create precedents that may be abused in the future.
Liberties seldom erode all at once, but instead, piece by piece over an extended period of time. Policies that may have originated with pure intentions have the potential to yield disastrous consequences. The Massie/Lofgren amendment was a reasonable safeguard against such encroachment, and I am disappointed that it failed to gain the necessary support. The goal of the amendment was not to impede upon national security, but to protect our liberties. When will we finally understand that those who are willing to sacrifice liberty for security will eventually end up with neither?