On August 17, Shenna Bellows of the ACLU spoke in Augusta, Maine on the occasion of Constitution Day. With her permission, I’ve transcribed her speech to share it here with you.
Good morning. It’s a pleasure to be here today on Constitution Day. Happy Constitution Day! The ACLU is an organization whose mission is to defend the Constitution and the Bill of Rights, and we do that in three ways. We do that through litigation in the courts, defending people’s constitutional rights. We do that in the legislature and the Congress conducting legislative advocacy. And we do it through public education, in events in schools all across the state, educating young people about the Constitution and the Bill of Rights.
I’m going to talk about four issues regarding the Fourth Amendment to the Constitution today as we talk about the balance between privacy in technology and security. The first is the context of when the Constitution was first written. One of the great things we do today on Constitution Day is to celebrate shared values, values that fall across differences of party or ideology. The Constitution and the Bill of Rights were formed at a very difficult time in our history, at a time when there was robust debate about who we are and what we could be as a country. During that time, when the British were in power, there was something called a general writ of assistance, under which British authorities could receive a general warrant that would allow them to search any property at any time in a search for contraband. This was deeply resented. Now the technology at the time was very rudimentary; what that meant you could have British authorities knocking on your door, coming into your home, demanding entry, conducting a search and sometimes destroying property. It was very tangible, very visible. And that’s where the Fourth Amendment come from, this idea that Americans are free in our persons, our places, our property from unreasonable search and seizure — and this concept that warrants shouldn’t issue except for those that specify reasons, that they should be based on probable cause, and that they should be issued by a neutral magistrate, by a judge. That’s the founding, that’s the principle, that’s right where it starts, the idea of the Fourth Amendment and the right to privacy.
You know, sometimes when I’m in high schools I hand out these constitutions — and you should take one at the end of the talk — and I ask people to find the word “privacy” in the Constitution. I tell them I’ll hand out a prize for the first one to find it. Now, of course, that’s a trick question, because the word “privacy” is not in there. But when we think about the right of freedom from unreasonable search and seizure, we know the right of privacy is part of the spirit of the Fourth Amendment. And it’s in other amendments as well: the freedom of expression, the freedom of speech, the freedom of thought contained in the First Amendment. It’s in the right to bear arms in the Second Amendment. It’s the “penumbra,” as the Supreme Court called it — the right to privacy is inherent in the spirit of the Constitution.
So let’s fast forward in history to 1986. Raise your hand if you’d been born during that time, if you were even alive during that time. Those of you who were alive in 1986 may or may not remember this very corny song, or maybe you’ve seen it on YouTube: “Walk Like an Egyptian” by the Bangles. That was on the top of the charts in 1986. That was the last time our nation’s privacy laws were updated. That was when the Electronic Communications Privacy Act was passed. Now, back in 1986 cell phones were essentially the size of small purses and not very many people had them. The World Wide Web had not been invented. I remember going to college in 1993 and showing my parents the Internet for the very first time. Back in 1986 we did not have the Internet in its current form. We were not connected in the way we are now. Our founders couldn’t anticipate the event that we would be carrying cell phones, little minicomputers in our pocket. Even in 1986 few people were envisioning that. That’s the last time our privacy laws were updated.
Since then we have experienced historical changes that have moved us in the opposite direction, moved us away from the principles of the Fourth Amendment. The events of September 11, 2001 really called into question security in our nation and the bounds between security and liberty. One of the first responses by the Congress was the passage of something called the USA PATRIOT Act. The USA PATRIOT Act created new powers. It says that the government can now conduct what are called “sneak and peek” searches, that they can go into your home, conduct a search of your property, and not tell you, if it was “connected” or “relevant” to terrorism. USA PATRIOT Act Section 215 is what we call the “library records provision” because under Section 215, government agencies could access any business records or any tangible thing without a particularized warrant, without a court’s finding of probable cause, just by saying it was “relevant” to a terrorism investigation.
The USA PATRIOT Act contained a third provision under “sneak and peak” — under “sneak and peak” searches people who were served one of these general warrants could not tell anyone. So we had an experience at the ACLU; at the time I was hired by the ACLU to talk about the PATRIOT Act, to educate people about the PATRIOT Act. Initially, there was some question: “yes, it’s there in the law, but the government is going to use this only in certain narrow circumstances! The issue of terrorism is so huge that they need these powers.” Shortly thereafter, our offices received a call from a librarian in Connecticut, and he had been served with a Section 215 order to turn over his patron’s records. We took on his case and it went to court. One day he came home from court and his son, his teenage son, was crying in the parking lot. He said, “Son, what’s wrong?” and his son said “I got a call from a reporter. The reporter said you’re a terrorist, that you’re wanted in connection with a terrorism investigation.” And the librarian realized he had not told his son or anyone in his family about what was happening at work, about the Section 215 order, because of the secrecy provision, because under the PATRIOT Act he could be prosecuted if he disclosed this, even to his son. And so he said, “Sorry, son, I can’t talk about it.” Now the reason the reporter found out was because the government made a mistake in the court filings and had accidentally disclosed from whom they were asking for records. But I tell this story to illustrate that when the PATRIOT Act was passed, it seemed to really shift the balance of power between the government, which is now seeking out these records, and librarians.
Although we only suspected it at the time, all of this extended to the internet. What the PATRIOT Act allowed was the massive government surveillance of our internet communications, of our phone conversations, and of our location. The same GPS device in your phone that allows you to find the Student Center or to go find someone else’s house, that same technology allows your service provider to determine your location at all times. It creates a virtual map of your movements. All these service providers are now collecting huge amounts of data on who’s talking to whom, for how long, and the contents of email communications. Our data is being warehoused in ways that we couldn’t have imagined a decade ago. So you have the PATRIOT Act, which has increased the government’s ability to access these types of data, and you have technology which has given us the miracle or geocaching or finding a friend’s house using our GPS device in our pocket but has also revealed to third parties huge amounts of information about us.
That brings me to the place we are in history today. Edward Snowden was a contract worker for the National Security Agency, and he found that he had access to all of this information about what the National Security Agency was collecting about Americans, all across the country. And he discovered that what the ACLU said about a decade ago about the PATRIOT Act’s changes to the law, that allows our government to monitor our phone calls and our internet communications, was in fact taking place. And so he made a very controversial decision. There are no whistleblower protections in our federal laws for national security employees. He made the decision to flee the country and disclose the nature and extent of National Security Agency surveillance on America.
That has brought about what I think is a really important conversation: to what extent do we think the government should know what we’re doing, what we’re saying, who we’re associating with? You know, there’s a philosophy that emerged after September 11 called Total Information Awareness, that if the government knew just everything about everyone, that if they could collect that data, that if they could track these huge patterns, that they could create algorithms that would predict who would engage in terrorist activity. Now the counter-philosophy is that it’s impossible, that if you make the haystack bigger, that if you amass simply huge amounts of information, that given finite resources you may actually compromise the government’s ability to go after and investigate those who would truly do us harm.
So there are two countervailing philosophies of security, and there are two countervailing attitudes about our constitutional rights. What does it mean when we say that a person shall be free in their persons, in their homes, and in their property from unreasonable search and seizure? Does that mean simply that a police officer can’t come and knock on your door and do a search through your things, or does it mean that someone shouldn’t be listening in on your phone calls, or reading your e-mails?
That is a question that faces us today. Congress hasn’t acted since 1986. They’re still walking around like Egyptians. Maybe they’re carrying around cell phones the size of their heads. But we are at a moment, from the ACLU’s perspective it’s a historic moment, when it’s time to put back in checks and balances. It’s time to update our laws to keep pace with technology so that we can be truly both safe and free, today and always.