IU expert: Surveillance programs trampling Fourth Amendment

FOR IMMEDIATE RELEASE

July 5, 2013

BLOOMINGTON, Ind. -- As Americans spend a long holiday weekend celebrating the birth of the United States, one Indiana University privacy expert believes recent disclosures about widespread government surveillance programs signal the erosion of something the founding fathers believed so heavily in -- the Fourth Amendment. Even worse, the massive programs are doing little, if anything, to prevent terrorism.

Fred Cate

"One of the most potent grievances that led the colonists to declare independence 237 years ago was the practice of British officials conducting door-to-door, person-to-person 'general' searches," IU Maurer School of Law Distinguished Professor Fred H. Cate said. "The hostility to general searches found powerful expression in the Fourth Amendment to the U.S. Constitution. And while the amendment established the right to be free from unreasonable search and seizures, it further held that the government had to get a warrant to conduct a search. To do that, the government must 'particularly describe the place to be searched, and the persons or things to be seized' and demonstrate under oath that it has probable cause that a crime has been or is likely to be committed."

Recent disclosures about surveillance by the National Security Agency and FBI demonstrate how far and how fast the Fourth Amendment is being eroded, Cate said.

In the last month, the media have reported the existence of programs that collect our telephonic metadata (who we call, where we call from, how long each call lasts, etc.), electronic conversations (email, Skype conversations, instant message logs) and even postal mail. While the government has insisted no actual content is being collected and stored, Cate said we are living in times where nearly every intimate detail of our lives are being subjected to government scrutiny.

And that, Cate said, is troubling for four distinct reasons.

Generalized searches. "The notion of general searches was so offensive, the colonists created the Fourth Amendment to prevent them. And that was back when letters were written with quill and ink and could be burned in a fire. Clicking 'send' on an email now likely means it will live forever on a server somewhere."

Times have changed. "Government leaders argue that the threat of terrorism has made everything different; that the values of the Fourth Amendment must give way in dangerous times," Cate said. "But it is important to remember that the times in which the Fourth Amendment was adopted. In 1784 the Treaty of Paris ended the Revolutionary War. The colonies were in economic and physical shambles, as was the new nation. The effort to adopt the Articles of Confederation had failed. The new nation was literally hanging by a thread, when the Fourth Amendment was adopted in 1789. In fact just four days after the amendment was adopted, Congress created a standing army for the new nation, and within 23 years the British would burn down the White House in the War of 1812. The danger to the survival of the nation seemed far greater then than now, yet it was in the midst of that turmoil that the Fourth Amendment was adopted."

The government can compel companies to support its surveillance efforts. "The government increasingly doesn't need to engage in its own surveillance. As the Verizon order showed, the government can instead compel companies to hand over data that they are often required by law to collect. So no matter how intrusive the government's surveillance appears today, if unchecked it will intrude far further into the lives of individuals in the future as all of the digital footprints that result from everyday activities are vacuumed up by the government," Cate said.

It's not worth it. In 2008, the National Academy of Sciences released the long-awaited report of its Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals, on which Cate served. The report contained the conclusions of a three-year inquiry into the science of data mining and its impact on privacy. "After hearing from a wide range of government officials from the United States and elsewhere, industry experts and academics, the committee reported that it 'found little evidence that current programs intended to detect terrorist activity by analysis of databases have been effective,'" Cate said. "And the report offered many reasons why such government efforts were unlikely to succeed, the most prominent being that terrorists and criminals are already alerted to surveillance programs. At the end of the day, the vast majority of data the government is about law-abiding Americans."

While the nation celebrates a festive occasion, Cate noted the irony that some of the very principles upon which the United States was founded are now seemingly being trampled in the name of terrorism prevention.

"We might well pause this July 4th weekend to wonder if we are honoring the vision and courage of our founders or advancing our own security by ignoring the Fourth Amendment and focusing our security efforts on collecting and analyzing vast swaths of data about individuals who have done nothing to warrant the government's suspicion," he said.

Fred Cate is the C. Ben Dutton Professor of Law and director of the Center for Applied Cybersecurity Research at Indiana University. He is a member of the inaugural U.S. Department of Homeland Security Data Privacy and Integrity Committee Cybersecurity Subcommittee and one of the founding editors of the Oxford University Press Journal, International Data Privacy Law. He can be reached at 812-855-1161 or fcate@indiana.edu.