An America without privacy

An America without privacy

Summary: Not only will we become an America without privacy, we'll become an America without recourse. The Constitution must not end where the digital domain begins.


I've been holding back on this for a few days. I've been finishing up a project, and quite frankly, I just didn't want to deal with yet another "Congress is trying to screw us over again" article.

But, surprise! Congress is screwing us over. And apparently, I can't hold back my opinion.

Here's the thing, and in this case, I'm directly addressing those so-called "representatives" we send to Washington theoretically on our behalf. It's a simple concept, so I want you to say it out loud, roll it around in your mouth, and think on it.

The Constitution must not end where the digital domain begins.

That's it. That's the big thought of the week. Say it again for me. Go ahead. You can do it. Repeat after me. The Constitution. Must not end. Where the digital domain begins.

What does that mean? Put simply, we have rights and expectations of rights when we do things online. Just because we're using that internet thing doesn't mean we're giving up what it means to be an American.

And to those who don't think we have any expectation of privacy when we go online, let me ask you this: If you take a poop in a bathroom in a shopping mall, do you expect privacy? Or would you not mind it if the government just recorded all your "functions" because your in a public place? Even our elected representatives who have dalliances in airport bathrooms clearly had some expectation of privacy.

So let's try something else out for size. We Americans don't lose our expectation of privacy just because we use a service to manage our communication.

We Americans expect privacy. Period. It's in the Constitution.

We expect privacy in all our dealings. We expect that unless a judge orders it for probable cause, that the United States Postal Service won't open our letters. We expect that unless a judge orders it for probable cause, that the plain ol' telephone service we use won't be tapped.

We expect privacy. And we expect, in the unusual circumstances that our privacy is being reduced, that a judge has granted that privacy reduction to law enforcement after careful consideration of the law and the situation.

In recent years, however, American lawmakers, law enforcement agencies, and some of my colleagues in the national security apparatus seem to have decided that judicial review is in impediment — it just gets in the way.

In a few, very limited instances, this may be true. Trying to stop events like the recent Boston bombing, when there are mere minutes to prevent a catastrophe, might justify not waiting for a judge to review your case. But those situations are few and far between, and should be the rare exception, not the rule.

The Cyber Intelligence Sharing and Protection Act (CISPA), and a wide variety of other legislation recently beta-tested by Congress, seeks to eliminate the essential judicial check and balance. But it's this judicial check and balance against overly-aggressive, overly-predatory, and overly-opportunistic public servants and corporate interests that has always separated America from de facto oligarchies like the former Soviet Union and 20th century South Africa.

Without a doubt, cybersecurity is absolutely essential as organized criminals, rogue nation states, and international actors target our citizens, infrastructure, and government operations with constant and unyielding ferocity. Certain laws need to be modernized to accommodate our changing world and the new realities inherent in the justifiable siege mentality that comes from being under constant cyberseige.

But America has always had the mandate to protect its citizens and its interests, and it has always tried to walk the fine line balancing protection of our interests with the protection of our rights, especially our privacy.

There are practical issues here as well. The current variation of CISPA allows an almost free-flow of private and personal information through corporate interests to government, as long as that information flow is labeled as necessary to protect against cyberthreats.

CISPA makes two serious mistakes in this regard. It removes judicial oversight, and removes the ability to penalize corporations for overstepping reasonable behavior.

As we've seen with how our bankers have schemed the system, finding loopholes in regulations and conducting themselves in both truly reprehensible and truly irresponsible ways, we can be sure that industries from insurance to collection to healthcare to banking to advertising will all likely find CISPA-supported loopholes to overstep their bounds and abuse their relationships with American citizens.

Not only will we become an America without privacy, we'll become an America without recourse.

It's ironic that just as CISPA is once again winding its way through the twisted and wrong-thinking halls of Congress, that Google (essentially our modern realization of Big Brother) has introduced Google Glass, a method by which our own citizenry can record and publish life experiences constantly, easily violating the privacy of anyone being glanced at by a Glass wearer.

Of course, the security implications of Glass are mind-boggling as well. The Health Insurance Portability and Accountability Act (HIPAA) violations become almost instant by medical personnel wearing Glass. Any employee looking at a screen while wearing Google Glass could be either augmented, improving productivity, or could be extracting confidential corporate information for sale or other nefarious purposes.

But the difference between CISPA and Glass is that Glass is voluntary and one-on-one. We don't expect our fellow citizens to protect our interests, and if we happen to encounter a Glass-wearer, we can choose to shun him or her, or avoid being within the range of the all-recording Glass eye.

But CISPA is something we can't avoid. With CISPA, online personal information can be sifted, sorted, examined, shared, and apportioned by virtually anyone with access to our online information.

There are loose restrictions about how that information can be gotten, but the restrictions are so loose that we can be sure the huge treasure trove of detailed personal records, from individual email messages to our purchasing history at Amazon and the local supermarket will be used and abused across the spectrum of corporate and government interests.

One concern, of course, is Big Data sifting of our online personal information without a warrant by government agencies. Information ostensibly gathered in the interests of deterring cyberthreats may well be used by excessively gung-ho agencies and law enforcement officials to find new people to penalize, fine, and prosecute.

This, of course, could put an even greater burden on our already over-taxed legal system, increase the time it would take for legitimate cases to wind their way through the courts, increase our already over-extended costs for managing the criminal justice system, and unjustly bring a lot of people to justice who are not deserving of prosecution or persecution.

And then there's the issue of all this data just hanging out there. While some government agencies have good operational cybersecurity protection, others are still just getting the hang of even the most basic of best practices.

A huge database of American personal information would be a very tempting target-rich environment for the very same criminals, rogue nations, and international actors that CISPA is theoretically designed to protect us against.

That's one of the great ironies of this legislation: It may actually worsen the very situation that it's designed to protect against. The House (and possibly the Senate) seems entirely willing to set aside the protections of the Constitution in favor of increased protection against cyberthreats.

But if the reality is that they're selling out our Constitutional protections and sacrificing our privacy, and the net result is we've actually delivered even more damning information into the hands of our enemies, well there can be no polite words for the irresponsible damage Congress is doing to our cherished freedoms and liberties.

America is a great nation because Americans are a great people. That said, history has shown us that the American government has been willing to act against the interests of Americans, often in ways that are mind-bogglingly unconstitutional, brutal, shameful, horrific, and even just plain stupid.

If Congress continues to proceed on the path it's been on these past few years — trying to bypass just cause, judicial review, and due process for the sake of expedience and freedom from oversight — America will no longer be the land of the free and the home of the brave.

So, once again, I must remind our Congressional representatives of this one simple truth: The Constitution must not end where the digital domain begins.

Related stories

Topics: Privacy, Government, Security


David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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  • No Duh!

    Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and (mis)applying the wrong remedies.
    Groucho Marx
    • This crosses party lines...

      It does not matter what party you typically vote for, individual digital privacy should be everyone's concerns and neither Repub or Dem seem to care one hoot about it.

      IDK, I am 45 and I have shifted in the past few years more and more to libertinism. Just get the government out of our lives.
      Rann Xeroxx
      • government, big corporations, what's the difference?

        Both want to know more about YOU.

        So if you want things out of your lives, how much are you prepared to give up?

        Oh, and will they let you have your freedom?
    • So that is the 'marxism' everyone talks about!

      Now it makes more coherent sense... before people were blaming politicians for doing things that other people named Marx would disavow...
  • No one stood up for me ...

    No one protected my right to not have to pay for services I don't want from the government (i.e. national healthcare, social security, etc.). I hope they do get too big for you to handle. I hope they tap and log every bit of data they can. We definitely need more people offended by Gov't BS like this so theres more of us voting for personal freedom next time around and not social support programs and "take from the working and give to the needy" mentalities.

    Then we'll just come full swing right? Things can go back to being right again?
    • Martin Niemoller...

      "First they came for ___, but I wasn't one of them..."

      Amazing how some things haven't dated...

      P.S. Cause vs effect, if government is catering to corporate lobbyists, why are you not upset at corporate lobbyists that are compelling government to give us all the finger in favor of their actions? Are you fond of corporatism, would you side with Mussolini during World War II? Just curious.
      • I am fond of free market.

        Because I view corporations as one track minded entities out for money. They can be controlled with it. I dont get mad at them for doing what is in their nature. Government of the other hand (ours to be specific) has a very different purpose. It ought not to be their nature to screw us. Its for us by us. They can be as compelling as they want ... but our gov't should have never been given the power to give our money in that manner in the first place. It's not their responsibility ... it's not in their job description.
    • Wow.

      Let's look at Medicare, why do you think it's so expensive? Because so many Americans don't have medical insurance. Who do you think pays the medical bills of these people? I'll tell you, the people who actually PAY for medical insurance, they pay in higher premiums.

      Does that sound fair?

      So, what to do? You have two choices: Either; no medical insurance - no treatment OR a mandatory "everyone has to pay" system (what President Obama advocated). However, there is a serious problem with "option 1" (apart from the fact that poorer Americans would suffer or potentially die) and that's 'timeliness'; if you have a critical medical condition you probably can't want people to take the time to check that you have medical insurance.

      The current system isn't working, because it places the (financial) burden of caring for those unable/unwilling to pay medical insurance upon those willing to pay.

      Have a little think about that, this is a more nuanced problem than you might think.
      • It is fair that only you pay for what you want, not the rest of us ...

        Just because some want to pay for something dosnt mean everyone else should have to jump in so your rates go down for your luxuries.

        Same goes with full coverage auto insurance ... or any insurance period. Insurance is a luxury item that people can buy for peace of mind. Everyone need not have it.

        Problem is some people seem to think all life is equal in value. It's not. Perhaps it was all created equal from the start (philosophical) but it's certainly not equal now. Contributors are worth more than leeches. In fact most contributors, as youve pointed out, are supporting multiple leeches along with themselves. That is why your rates are high. Giving care to people not paying in is what does that.

        #1 largest drains on the medicare pool arent the people unwilling to pay. Emergency room visits are few and far in between compared to the people who arent working and are on medications for phony problems diagnosed in this broken westren medicine system we have going. Medications are the absolute worst. And more than half of those even are for small non-lifethreatening fixes (luxuries). Those luxuries ought not to be covered. Everytime someone fights for this "healthcare" though theyll throw down the "life or death" card.
        • So...

          Why not force everyone to pay? If everyone contributes then the cost for the individual will fall. It's simple economics.

          Here in the UK we have a "prescription" system, so if your Doctor prescribes a treatment for you (your "GP" this isn't something you'd be hospitalised with) you have to pay a flat rate for each item. There are some things that are exempt (not many, but some). The cost of the treatment isn't a factor (it is per item). It is high enough to stop the very abuses you are talking about, but not prohibitive.

          We here in the UK are very proud of our National Health Service (NHS) because it works, it is fair and equitable. If this is President Obama's ambition for Americans then it seems a good one. Of course, there does seem to be a lot of misinformation from those who would lose out; the giant Medicare companies.

          Don't think we don't have healthcare companies, we do, and people do pay into them. Typically people pay into them so that they can get treatment more quickly, have a private room, etc.
          • I see now where the rift is ...

            If it works for people in the UK thats great. I know however that american mindsets are different. Any amount I have to pay is more than I would be paying for those prescriptions, because I dont get them or need them.

            The answer to your question, "Why not force everyone to pay?", in my mind is self explanatory. You ought not to "force" anyone to do anything here. People dont like being told what to do or how to spend their money ... plain and simple.
          • Consider...

            Would you feel the same about the Fire Service? Or the Police? Clearly there are services that are provided by the Government that are good for society at large, and if you want them then society at large must pay for them (through taxation).

            Government should spend your taxes wisely (and that often doesn't happen now) at least here this is for the benefit of the people.

            You might think: "I'm not sick, so how does it benefit me?" Well, what about an infectious disease? Would it be better for you if people couldn't get treatment for an infectious condition? Having an adequately funded health care system is a huge positive for society. We didn't always have this in the UK, and the same arguments went on before it was introduced. It was set up in the 1940's and there is no desire amongst the British to go back.

            I know you find it hard to believe, but I cannot see why such a system couldn't work in the United States. Our system costs far, far less than American medical insurance typically costs.

            Clearly I've explained prescriptions badly. You only pay when you need something - but you aren't expected to pay the cost of the medication (it's a flat pre-item cost). So if you aren't sick, you're not paying. But it does act as a disincentive from trying to get medication you don't actually need.

            You do not pay for hospital treatment, though this is limited to essentials (you can't get cosmetic procedures done on the NHS, for example).
          • The money comes from somewhere!

            But you are still paying for that flat rate prescription through your taxes. your taxes are what offset that high cost. The cost for the care isnt changing at all ... the cost the consumer sees upfront is the only things thats changing. That cost only makes things seem lower but its due to the money youd be taking from your neighbors.

            Perhaps some services have merit ... but how they are payed for still ought to be on the backs of the people who use them most. Drivers pay a specific tax to be used to maintain roads. If you dont drive you ought not to have to pay. I wonder how many new yorkers would be thrilled to hear of a tax increase for road maintenance of highways in other states when the mojority there dont use personal automobiles. Or how people who make a concious choice to conserve on their end would feel if they had to pay the same flat amount as someone who wastes.

            If this works the way you say ... why is it not made a flat rate tax then? Does that mean people who have more money to their name are more sickly? If the weight of this thing is supposed to be equal for each person ... why isnt it flat?
          • Centralised buying

            You forget the economics of scale, buying drugs on a national scale is cheaper than firms buying them (and you have to work within tight budgets - you can't just "pass on the expense). The NHS is quite a pragmatic system, if it can source things cheaper through the private sector, it does.

            The thing is unlike your highways example, pretty much everyone gets sick at some point in their life. Why should someone who has worked all their life have their life saving emptied just because they or a loved one gets sick? Isn't there a collective responsibility to look after the sick and injured?
          • Not a collective responsibility

            But there is a personal responsibility there. Its something everyone should be planning for on their own ... same as retirement. If you dont want to be a burden on your family you make those arrangements yourself. When it becomes someone elses responsibility to take care of you then it causes problems.
          • Err - WTF?

            The problem is people don't, and those that do end up carrying them. That's what happens with healthcare in the US, why do you think President Obama was trying to change it (because politically is one very hot-potato).

            The big medicare companies are lobbying very hard to poison this topic, they want to charge a fortune, and the inequity in the system doesn't hurt them one bit. But ordinary US citizens are paying far more for their health insurance than they need to (and far more than UK citizens do via taxes).
          • Well

            The ones that should have to carry people like that ought to be localized to that persons family alone. They would be the ones who had most influence during the time where said person was not putting money aside for these sort of things. They would be the ones best suited for judging weather or not they should put money into preserving said persons life or to pull the plug. That is certainly not my responsibility ...

            Only the people directly benefiting from keeping said person around should be responsible for that burden, of course the person themselves being most responsible first and foremost.

            If they decide not to then they decide not to ... thats not on me.
  • Did you and I read the same bill?

    Because after reading the bill, what I basically understood it to be was immunity from prosecution if an ISP, telco or similar private entity voluntarily elected to share information when requested by authorized federal agencies. The bill explicitly states that these entities are not REQUIRED at all to disclose information upon request, but if they decide to do so, they are indemnified from prosecution.
    • Whos protected?

      Youre saying the ISP is unable to be prosecuted? i.e. the person who is being incriminated by the data the ISP is giving the Gov't has no legal recourse against the ISP for giving up their information. Privacy policy be damned apparently.

      And even if this document were to keep individuals protected from the data being incriminating ... they now know where and when to search because theyd have a whole history of what youd done and what you continually do. Then they will be free to gather evidence outside the ISP's data to incriminate you ... through entrapment techniques no doubt.
      • The only people that matter, of course

        It's far more important to protect business owners and executives from liability than it is to protect the privacy of mere customers (or even non-executive employees).

        Get your priorities straight!
        John L. Ries