As shown by the FBI’s relatively quick trip through
the online missives of Gen. David Petraeus’ trysts, not much — if any — of our
electronic communication is genuinely “private,” not even for the director of
the world’s largest spy agency.
No matter what assumptions, promises or e-mail ploys
we might rely on, the one safe approach today is to assume every Internet
search, each e-mail, any tweet or Facebook post is at least a discoverable
whisper to the world, if not an outright shout.
The implications of that online reality go well
beyond personal discomfort or professional disgrace, all the way to First
Amendment principles underpinning free speech, free press, petition and the
right to associate freely.
Anonymous speech and freely associating with others
clearly enhance our ability to seek change in government policies without the
chilling impact of “Big Brother” taking names — and, at least potentially,
punishing citizens.
We have only to look at the start of the nation to
see the value the Founders placed on anonymity. Alexander Hamilton, John Jay
and James Madison used the pen name “Publius” in circulating the 85 essays and
articles of the Federalist Papers in 1777 and 1778, discussing what became the
principles of the U.S. Constitution.
More than a century later, the core value of
individual privacy was declared in an 1890 law review article, “Right to
Privacy,” co-written by Louis Brandeis, later a renowned Supreme Court justice.
Noting that “recent inventions and business methods” were fueling an
unprecedented increase in gossip and that “to satisfy a prurient taste the
details of sexual relations are spread broadcast in the columns of daily
papers,” the article called for legal protection of the right “to be let
alone.”
In 1958, the U.S. Supreme Court tied privacy
directly to the right of groups not to disclose the names on their membership
lists. In NAACP v. Alabama, the Court specifically supported the idea that such
groups could shield their members from potential reprisals.
But fast-forward to 2011, when the Supreme Court
ruled in favor of requiring Washington state to disclose the names of those who
signed petitions to overturn a gay-marriage law. The signers’ fear of being
targeted was an acknowledged part of the legal debate. So much for anonymous
speech in that one.
The tools of privacy from years past seem as
inefficient as they do quaint in today’s era of electronic transparency. Where
once lowering the window shades, closing an office door, or sealing a letter
for the mail might suffice, a tsunami of data-mining from online official records,
and the global, instantaneous and apparently eternal cache of Facebook photos,
tweets and e-mail trails, makes closing the e-door or sealing an archive all
but impossible.
Under the 1986 Electronic Communications Privacy
Act, federal prosecutors can simply issue a subpoena to get e-mails and such
more than six months old. A recent Associated Press report said that’s usually
enough to get Internet companies “to reveal names and any other information
that they have that would identify the owner of a particular e-mail account.”
The AP story said a Google report showed it
“complied with more than 90% of the nearly 12,300 requests it received in 2011
from the U.S. government for data about its users.”
In the Petraeus matter, the FBI was able to track
strings of e-mails with his ex-mistress — and in a related search, obtain what
some reports call “30,000 pages” of e-mails between another general and a
second woman linked to the scandal, all in a matter of weeks or months.
For those of us tempted not to worry about privacy
because we “haven’t done anything wrong,” there’s a non-criminal Pandora’s Box
to stress about: aggregation of private information. This includes everything
from our use of supermarket discount cards and online health information to
lists of videos we rent and websites we visit — all maintained by someone,
somewhere, available to others and all of it largely without our knowledge.
Be that as it may, the First Amendment’s role is to
forestall government intrusion and abuse — so that we may write and speak
freely, and gather with others of like minds, perhaps to seek a change in
direction by our government.
We cannot be distracted by the tawdry details of
infidelity involving a few people from seeing yet another signal that all our
lives are more open than ever to agents of government.
About the author: Gene Policinski, senior vice
president and executive director of the First Amendment Center, is a veteran
journalist whose career has included work in newspapers, radio, television and
online.
This article was published by the First Amendment
Center.
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