The Right to Privacy of Correspondence Is Inviolate

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The Right to Privacy of Correspondence Is Inviolate

We now know the NSA routinely collects our normally private communications. That collection includes e-mail, video and voice chat, videos, photos, voiceover IP (e.g., Skype) chats, file transfers, social networking details and more. The American people must respond. If there isn’t a strong enough outcry, these practices will become institutionalized.

The entire case raises important civil liberties questions. Should the government be able to collect and store all of our phone calls and electronic correspondence? Or should Americans have a right to the privacy of correspondence?

The constitutions of many other countries guarantee and protect the privacy of correspondence. The United States does not.

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The right to the privacy of correspondence is one of these unenumerated rights.

The Founders claimed that people have natural rights. These rights are not granted by the government. We have them regardless of the government choosing to bestow them in writing or legislation. We possess them simply by being human. They are still our rights even if the government tries to take them away.

The first principle of these natural rights would be the right to own ourselves.

The Founding Fathers were not being hypocritical, holding slaves while declaring all men have a right to self-ownership. Benjamin Franklin, John Adams, Thomas Jefferson, and even George Washington, a slave owner himself, all went on record saying to the effect that “there is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of slavery” (to use George Washington’s words).

From this principle flows the right to property. If you own yourself, you own the fruit of your labor.

The privacy of our conversations and correspondence also comes from this point. If you own yourself, you can choose with whom you share your thoughts and expressions. Thus privacy of correspondence becomes a natural right.

Our natural right to the privacy of correspondence should be neither increased nor decreased by either enumerating it or leaving it unenumerated.

However, the American court system today treats enumerated rights very differently from unenumerated rights. Our rights enumerated in the Constitution serve as a paper barrier. Government intrusions on those written words have rallied public outcry more effectively than invasions on our unenumerated natural rights.

Because we don’t have an enumerated right to the privacy of correspondence, the government can claim that the Fourth Amendment, which guards us against unreasonable search and seizure, doesn’t apply in this case. Or they can rewrite legislation that provides loopholes to allow their currently employed technologies. Or they can reroute information outside the country for content review by the intelligence community of one of our allies. In essence they can choose to declare legal whatever they want and continue to operate under the veneer of legality.

Therefore, we propose the following constitutional amendment to add the enumeration of this important natural right:

Everyone shall be entitled to secrecy of messages, both sent and received, by any means of communication. The freedom and confidentiality of correspondence in any form of communication shall be inviolable.

No federal, state or local government authority or their officials may collect or store correspondence or metadata on the transmission of correspondence without the expressed permission of all involved parties.

No public or private entity can pay for, promote, encourage, initiate or further the violation of this right. Exceptions to this provision shall be allowed only with the permission of the judicial authorities for the purpose of discovering or preventing a grave crime.

Citizens have the right to become acquainted with information about themselves held by federal, state and local government authorities, in federal, state and local government archives, or to which the federal, state or local government authorities have access, in accordance with procedures determined by law.

A constitutional amendment is a simple and direct response to the growing intrusion into personal freedoms. The vested interests of government officials have little in common with the protection of civil liberties. It is not unreasonable to fear the likely abuse of government surveillance. The natural right to the privacy of correspondence has popular support. Enumerating such a right will turn back the growing normalization of government surveillance.

Several states have ballot measures whereby citizens can directly propose such resolutions. Others will have to be introduced by willing state legislatures. If one state grants its citizens the right, it will begin to raise public awareness and support for the right to privacy of correspondence, as well as inevitably to raise the issue in the federal courts. If the right stands in one state, it would bar government surveillance of that state’s citizens. Equal protection laws might extend that right to other states as well.

The time is now. We need to protect more of our natural rights by enumerating them.

Wondering what you can do to Support the Right to Privacy of Correspondence?

Photo by Bill McNeal used here under Flickr Creative Commons.

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David John Marotta is the Founder and President of Marotta Wealth Management. He played for the State Department chess team at age 11, graduated from Stanford, taught Computer and Information Science, and still loves math and strategy games. Favorite number: e (2.7182818…)

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10 Responses

  1. David John Marotta
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    [2:11] There’s a way to look at digital communications in the past. … No digital communication is secure.

  2. David John Marotta
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    Ron Paul on the NSA:

    [2:05] They have to try to justify their existence of destroying the freedom and privacy of American citizens.

    [2:48] They want to burn the Constitution to save the Constitution. And even today Cole, the deputy Attorney General said “Well the Fourth Amendment doesn’t apply to this.” Where did he get this brilliance to know when it applies and when it doesn’t? Of course the Congress is the onew who messed it up. They’re the ones who passed the Patriot Act.

  3. David John Marotta
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    Thomas Drake, who was prosecuted for allegedly disclosing National Security Agency secrets years before Edward Snowden:

    [1:32] There’s no room in a democracy for this kind of secrecy which is ostensibly done in this country in the name of national security when it is violating the fundamental tenets of the country which in this case is the Constitution and the Bill of Rights. But apparently it doesn’t matter any more. Particularly in the post 9-11 world the Constitution is in the way.

    We have essentially seen a revocation – the revoking of the fundamental underpinnings of this country since 9-11. And everything else since then is really a Kabuki dance where partnership with Congress they pass enabling act legislation that allows them to conduct these activities under the veneer of law or the color of law.

    [4:31] The Stasi in Germany would have drooled over this capability.

    [5:30] I keep telling the story about what it’s like to live in a surveillance state and without exception people say, “No that’s not a life I would want to life.” Well if you don’t want to live it then you have to stand up and defend the right and the freedoms that prevent that from happening.

  4. David John Marotta
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    From Wikipedia, “Stored Communications Act“:

    The Fourth Amendment to the U.S. Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” However, when applied to information stored online, the Fourth Amendment’s protections are potentially far weaker. In part, this is because the Fourth Amendment defines the “right to be secure” in spatial terms that do not directly apply to the “reasonable expectation of privacy” in an online context. In addition, society has not reached clear consensus over expectations of privacy in terms of more modern (and developing, future) forms of recorded and/or transmitted information.

    Furthermore, users generally entrust the security of online information to a third party, an ISP. In many cases, Fourth Amendment doctrine has held that, in so doing, users relinquish any expectation of privacy. The “third party doctrine” holds “…that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information.”

    From Wikipedia “MAINWAY“:

    The 1986 Stored Communications Act (18 U.S.C. § 2701) forbids turnover of information to the government without a warrant or court order, the law gives consumers the right to sue for violations of the act.

    “A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication…only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure”

    However, the Stored Communications Act also authorizes phone providers to conduct electronic surveillance if the Attorney General of the United States certifies that a court order or warrant is not required and that the surveillance is required:

    [Telephone providers] are authorized to…intercept…communications or to conduct electronic surveillance…if such provider…has been provided with a certification in writing by…the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.

  5. David John Marotta
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    From “Groups join Electronic Frontier Foundation in NSA lawsuit“:

    “We think that the right place to determine whether the government is acting legally and constitutionally is in the public…court system,” EFF Legal Director Cindy Cohn said. “[An internal or one sided] court process isn’t the way…Anyone can convince themselves that what they’re doing is legal but that’s not how it works in this country. We’re alleging either that the statute doesn’t authorize what it is they’re doing or that if it does authorize what they’re doing, it’s unconstitutional.”

  6. David John Marotta
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    From “The story behind Verizon’s phone record sharing“:

    Last month, a former FBI agent told CNN that telephone calls were “being captured as we speak whether we know it or like it or not,” but recording each and every American phone call would require a staggering amount of storage space.

    In 2006, a retired AT&T technician revealed that the company, on behalf of the NSA, had three years earlier installed wiretapping equipment in a secret room in a major telephone-network switching facility in San Francisco. The technician said he believed that similar installations existed across the country.

    Former NSA officials have hinted that the agency may be blindly archiving every email message sent in the U.S. Law enforcement would still require warrants to read the contents of those emails (or at least emails less than six months old), but at least they’d be easily accessed.

  7. David John Marotta
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    I received this from a reader of the column:

    Surveillance: An ever-widening issue

    Would like your reference on the “retroactive wiretapping” that you bring up. Was under the impression that the metadata collected and stored by the NSA and the phone companies was billing data only (and not the actual conversations). Do they really record and store every phone conversation made without any semblance of a court order? Can they go back and listen to a conversation I had 5 years ago?

    If you have listened to Snowden’s Interviews, and also watched the videos listed here above you have some of the references. Snowden and others have been trying to warn us about the massive clandestine government surveillance system that is currently in place.

    And while they will deny that the government is collecting and storing your information that is because the companies themsevles are the ones doing the storing and the government is only retroactively listening when they believe they have reason to listen to them.

    But to answer your question, “Yes, everyone who has gone on the record claims that they can go back and review emails and conversations you had 5 years ago.”

    • Pete Paulson
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      Snowden references the Verizon Order as his proof that all calls are recorded in mass. That Order is for a business subset of Verizon, for a 90 day period and for metadata only. Nowhere have I seen or heard of anyone saying that “all calls are being recorded”. (To include the retired FBI guy you reference). Where is that reference? Here is the Verizon Order.

      http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-data-court-order

      • Megan Russell
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        Well, Edward Snowden says in his interview with Glenn Greenwald:

        Beyond that, we’ve got PRISM, which is a demonstration of how the U.S. government co-opts U.S. corporate power to its own ends. Companies like Google, Facebook, Apple, Microsoft — they all get together with the NSA and provide the NSA direct access to the back ends of all the systems you use to communicate, to store data, to put things in the cloud, and even just to send birthday wishes and keep a record of your life. And they give NSA direct access that they don’t need to oversee so they can’t be held liable for it. I think that’s a dangerous capability for anybody to have but particularly an organization that’s demonstrated time and time again that they’ll work to shield themselves from oversight.

        Because even if you’re not doing anything wrong, you’re being watched and recorded. And the storage capability of these systems increases every year consistently, by orders of magnitude, to where it’s getting to the point you don’t have to have done anything wrong. You simply have to eventually fall under suspicion from somebody, even by a wrong call, and then they can use the system to go back in time and scrutinize every decision you’ve ever made, every friend you’ve ever discussed something with, and attack you on that basis, to sort of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.

        Also to quote our other article on privacy:

        In June, London’s The Guardian reported, “A chart prepared by the NSA, contained within the top-secret document obtained by the Guardian, underscores the breadth of the data it is able to obtain: email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details, and more.”

        Maybe they haven’t gotten Verizon to agree yet. However, they’ve never denied that they are recording our conversations.

        Furthermore, metadata is a lot more important than “just metadata.” As Malte Spitz, a German politician, wrote for the New York Times, “Germans Loved Obama. Now We Don’t Trust Him.“, saying:

        That was my motivation for publishing the metadata I received from T-Mobile. Together with Zeit Online, the online edition of the weekly German newspaper Die Zeit, I published an infographic of six months of my life for all to see. With these 35,830 pieces of data, you can follow my travels across Germany, you can see when I went to sleep and woke up, a trail further enriched with public information from my social networking sites: six months of my life viewable for everybody to see what exactly is possible with “just metadata.”

        Three weeks ago, when the news broke about the National Security Agency’s collection of metadata in the United States, I knew exactly what it meant. My records revealed the movements of a single individual; now imagine if you had access to millions of similar data sets. You could easily draw maps, tracing communication and movement. You could see which individuals, families or groups were communicating with one another. You could identify any social group and determine its major actors.

        All of this is possible without knowing the specific content of a conversation, just technical information — the sender and recipient, the time and duration of the call and the geolocation data.

        With Edward J. Snowden’s important revelations fresh in our minds, Germans were eager to hear President Obama’s recent speech in Berlin. But the Barack Obama who spoke in front of the Brandenburg Gate to a few thousand people on June 19 looked a lot different from the one who spoke in front of the Siegessäule in July 2008 in front of more than 200,000 people, who had gathered in the heart of Berlin to listen to Mr. Obama, then running for president. His political agenda as a candidate was a breath of fresh air compared with that of George W. Bush. Mr. Obama aimed to close the Guantánamo Bay detention camp, end mass surveillance in the so-called war on terror and defend individual freedom.

        But the senator who promised to shut Guantánamo is now a second-term president who is still fighting for its closure. And the events of the past few weeks concerning the collection of metadata and private e-mail and social-media content have made many Germans further question Mr. Obama’s proclaimed commitment to the individual freedoms we hold dear.

        Perhaps instead of including a quote from James Madison in his speech, arguing that “No nation could preserve its freedom in the midst of continual warfare,” Mr. Obama should have been reminded of the quote from another founding father, Benjamin Franklin, when he said, “They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

  8. David John Marotta
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    State legislatures acting to pass protective legislation such as The Right to the Privacy of Correspondence is what it will take to push this issue forward. Attempts are being made and failing to have the critical political will to be passed. Here is “NSA Scandal Exposes Sleeping Lege” the attempts in Texas:

    News reports Thursday revealed that the personal data and private communications of millions of Texans has been accessed — unconstitutionally — by the federal government.

    And thanks to inaction by the Texas Legislature, Texans have no way to answer, says the head of the Texas Nationalist Movement.

    The Washington Post reported Thursday that the National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs — all of it illegal search and seizure under the Fourth Amendment. According to a secret document obtained by the Post, “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”

    “The Texas Legislature had ample opportunity to put this state’s foot down and tell the federal government, ‘No More!'” in this year’s session,” said Daniel Miller, president of the Texas Nationalist Movement. “A number of pieces of legislation were proposed which would have helped re-affirm Texas’ sovereignty, guaranteed by the Tenth Amendment, against exactly this type of abuse of power by the federal government. Texas House Speaker Joe Straus and his cronies killed every one of them.”

    TNM members lobbied a number of legislators to promote state-sovereignty issues and saw success at seeing bills introduced, Miller said, but every bill that would have “demonstrated Texas’ backbone” got shot down by legislators apparently more intent on advancing their own careers than protecting Texans.

    “This administration is engaged in illegal activity that would have made the KGB blush in its heyday,” Miller said. “The Legislature had a chance in this session to save the Union, to preserve the Constitution — but it abandoned its role.”

    Miller said the task for his organization is to do the job this Legislature failed to do.

    “We will give the people of Texas another option between Republicrat and Demopublican,” he said.