The NSA scandal suggests that intelligence officials can and do lie, the author writes. Privacy is a conservative cause

As Congress takes a closer look at Internet privacy with this week’s Federal Trade Commission oversight hearing in the House, conservatives have a unique opportunity.

Privacy used to be a dirty word among many conservatives because the liberal Warren Court of the 1960s used concepts such as “penumbras” – words not expressly found in the Constitution — to overturn state laws that protected traditional moral precepts or valid law enforcement.


In recent years, however, beginning with the passage of the USA Patriot Act during the George W. Bush years, but expanded seemingly without limit under Barack Obama, conservatives have awakened to the threat of the massive surveillance state.

( POLITICO's full coverage of the National Security Agency)

Some of the leading Republican presidential prospects are taking a hatchet to the Obama administration over the scandal. Sen. Rand Paul (R-Ky.) has introduced a bill to rein in the National Security Agency’s sweeping powers, and Sen. Ted Cruz (R-Texas) recently knocked President Obama for allowing an “unprecedented and intrusive surveillance system” to take hold, eroding Americans’ privacy rights.

House conservatives have joined the fight, too. An amendment to shut down the NSA’s sweeping Internet and phone data collection programs sponsored by Rep. Justin Amash (R-Mich.) was narrowly defeated after leadership stepped in to vote it down. And just recently, Rep. Marsha Blackburn (R.-Tenn.), a Tea Party favorite, resumed a series of briefings focused on the growing threats to privacy and the collection of personal data.

Even Republican hawks are turning. Some of the same lawmakers who helped usher in the surveillance state, including the co-author of the Patriot Act, Rep. Jim Sensenbrenner (R.-Wis.), are pushing back with their own legislation.

So, what’s changed?

( Also on POLITICO: EU to D.C.: Friends 'do not spy on each other')

With the scandal-plagued IRS mucking around in our health care decisions and Edward Snowden’s revelations about the NSA snooping into our “private” communications, the constitutional stakes are simply much higher.

The NSA scandal, moreover, strongly suggests that intelligence officials can and do lie to get around the Fourth Amendment legal limits and the limply enforced limits imposed by the Patriot Act and the Foreign Intelligence Surveillance Act (FISA), raising the privacy issue to a new level.

The recent scandals also dovetail with the rising influence of limited government constitutional conservatives and their quest to break with the George W. Bush era of Big Government and Big Surveillance.

The NSA affair has definitely spurred new thinking, but more needs to be done. Conservatives must begin to scrutinize the nexus between tech companies, such as Google, and the federal government. There is no longer a wall between the private sector and government surveillance.

( Also on POLITICO: NSA director Keith Alexander says European spying reports are false)

These data-collection giants are not even a valid subpoena away from handing over our most personal data, which they organize, analyze, and “monetize,” in Google parlance. Look no further than Wednesday’s news for evidence of how the wall between public surveillance and private surveillance is now rendered meaningless for policymakers. The NSA tapping into Google’s data centers is reminiscent of the age-old “Willie Sutton” rule: The agency captured personal data profiles from Google because that’s where the data is. Indeed, the search giant has emerged as the purveyor of all of our personal information — in one sense the NSA’s leading vendor.

Today’s tech behemoths amass huge collections of information, and use them to develop profiles that predict behavior and receptivity, everything from the content of emails to tracking our daily activities, habits, wants, etc. It all goes well beyond sophisticated marketing.

However, some cracks in Google’s armor are beginning to emerge. In recent weeks, the company has been hammered with stinging court losses over allegations involving the misuse of its Google Street View cars and the scanning of Gmail accounts. Plaintiffs in both cases invoked the same federal wiretapping statute.

The data collection giant’s scanning of emails may get a full public airing after U.S. District Judge Lucy H. Koh in San Jose, California, rejected Google’s motion to dismiss, allowing the case to move forward.

( Also on POLITICO: NSA fires back at Washington Post report)

Judge Koh’s revealing decision is worth reading in full. She picked apart Google’s central argument:

“Google has cited no case that stands for the proposition that users who send e-mails impliedly consent to interceptions and use of their communications by third parties other than the intended recipient of the e-mail. Nor has Google cited anything that suggests that by doing nothing more than receiving e-mails from a Gmail user, non-Gmail users have consented to the interception of those communications. Accepting Google’s theory of implied consent — that by merely sending emails to or receiving e-mails from a Gmail user, a non-Gmail user has consented to Google’s interception of such e-mails for any purposes — would eviscerate the rule against interception.”

Privacy used to be the exclusive realm of libertarians and the left, but the world that Edward Snowden unmasked has propelled conservatives to push forward on privacy.

It is time for conservatives to throw off the influence of surveillance state advocates, make common cause with libertarians and receptive liberals, and take the privacy fight a step further to rein in companies that – wittingly or unwittingly – have become the government’s partners in the massive surveillance state.

Richard A. Viguerie is chairman of ConservativeHQ.com and author of Conservatives Betrayed: How George W. Bush and Other Big Government Republicans Hijacked the Conservative Cause.