Constitutional Law

What the Government Wants to Know About You

By Catherine Crump, Speech, Privacy and Technology Pr

Earlier this month, news broke that the government got a court order to force Twitter to reveal the private account information of some people associated with WikiLeaks. What is unusual about the situation is not that the government obtained such an order, but that we found out about it at all. Our government routinely gains access to Americans' private online information through secret court orders. Worse yet, these proceedings are one-sided, with only the government presenting arguments. In a legal system based on openness and adversarial process, this has led to troubling results that threaten our privacy.

Many of us spend a great deal of time online and it should come as no surprise that law enforcement has followed. People type things into Google they wouldn't tell their spouses and store years of their most intimate correspondence with Yahoo! Internet service providers complain that the volume of requests for their customers' private online information is so huge that they now have entire departments dedicated to responding to court orders.

The public has been largely unaware of this trend, due to the secrecy of courts and the failure of corporations to put up much of a fight. When the government wants someone's private online information, it files an application under seal asking the court for permission. The government presents its arguments, but there is no one on the other side — because the person whose information is at stake does not know it is happening and because corporations have little incentive to spend time and money objecting. Even worse, the government's applications are sealed until someone requests they be unsealed, and since the person under surveillance typically never learns about it, these applications usually stay sealed forever. The net result is a system in which individuals' electronic privacy is regularly put in jeopardy, with no chance to fight it, in a context vastly favorable to the government.

This is made more troubling by the fact that the law governing electronic surveillance is not clear. For example, the Fourth Amendment compels the government to obtain a warrant and show probable cause to access someone's email. Unfortunately, the government disagrees, arguing that the Fourth Amendment does not cover email. That is a startling position that would mean Americans could no longer expect the privacy in our correspondence that we enjoyed in the past.

Regardless how one feels about the Fourth Amendment's applicability to email, we should all agree that it's problematic when controversial issues of law are routinely decided in secret, one-sided proceedings. The current system of secrecy works perfectly fine for the government, so it is especially important that companies and courts take initiative to combat excessive secrecy. Twitter is to be commended for taking the rare step of asking that a government surveillance request be made public. Other companies should follow suit. Courts have a role to play, too. Even if investigative details are rightly kept secret, in general the law of surveillance should not be a secret law. Courts should require the government to file its legal arguments in public, and should make their own decisions to grant or deny applications public as well.

Our online lives are increasingly our lives, and our online privacy rights are too important to be decided in secret, one-sided hearings.

(Cross-posted to Open Salon and Daily Kos.)

Full post as published by Blog of Rights on January 18, 2011 (boomark / email).