Now that the FISA Amendments Act has been passed by both houses of the Democratic-controlled Congress and signed by President George W. Bush into law, a president’s administration can physically search or electronically spy on anyone, inside or outside the United States, doing anything, for periods of up to 67 days, without a warrant, without having to provide a reason, and then keep whatever information is obtained even if a judge complains after the fact.
Consider what this means to the idea of confidentiality in America.
Imagine a time before the passage of the FISA Amendments Act. Say, two weeks ago. Imagine that you and your husband, or you and your priest, or you and your doctor, or you and your lawyer, or you and a journalist were having a conversation with the mutual understanding that the contents of that conversation were confidential. Imagine you found out that the government was recording this private conversation. You had the right to demand that the government produce a warrant, a document demonstrating probable cause to a judge that a crime is being or has been committed. If there wasn’t a warrant, you had the ability to kick the government’s collective ass out of your business, demanding that it purge its records. You also could punish the government for violating your rights by suing its collective ass off.
Now imagine a time after the passage of the FISA Amendments Act. Say, this morning. Imagine that you and your husband, or you and your priest, or you and your doctor, or you and your lawyer, or you and a journalist were having a conversation with the mutual understanding that the contents of that conversation were confidential. Imagine you found out that the government was recording this private conversation. Tough luck, kiddo. Sure, the Constitution still says the government can’t bust in our your business — but the Constitution is more like a suggestion than a binding document these days. Under the unconstitutional law that’s in effect now, the government doesn’t have to show you jack, and even if the government’s own secret court says you’ve been done wrong, the government can keep whatever information it gets.
There’s no escape clause for conversations with your spouse or priest or doctor or lawyer. There’s no exception for journalists talking with sources. Confidentiality is out the window. Kiss your privacy bye-bye.
What are you going to do about it? For once, I’m not talking about political action like contacting members of Congress or marching in the street or writing letters to the editor. I’m talking about what you’re going to do in your personal life. With the presumption of confidentiality gone, how will you personally react?
One reaction might be to do nothing and hope: hope that whatever pieces of information you wish nobody knew will stay private. That worked really well for Eliot Spitzer, didn’t it? Remember how his career was ended: when a wiretap directed at someone else indirectly implicated him in another matter. What information could end your career? You could always hope for the best.
A second reaction might be to clamp down on all the information you possess and transfer. No more phone conversations. No talking in your house, or near public buildings that might have listening equipment, or on public transportation. Encoded e-mails.
A third reaction might be to let the most personal details of your life become public now. Let it all out when and how you see fit, let whatever embarrassment comes pass over you, then live free of the possibility of extortion or intimidation or other manipulation.
What are you going to do now that you have no privacy left?