The press is outraged over the Justice Department’s secretive seizure of Associated Press reporters’ phone records. It’s an assault on freedom of the press, sends chills through the body politic and so on.
All of this is true. But the real scandal isn’t what the government took through highly questionable methods, but what it can take — from the press, and you — with the full blessing of the law. Including, it appears, taking whatever phone records it wants from the AP or anyone else.
Tim Lee walks us through this garden of horrors in his first column for the Washington Post’s “Wonkblog”:
U.S. law allows the government to engage in this type of surveillance—on media organizations or anyone else—without meaningful judicial oversight.
The key here is a legal principle known as the “third party doctrine,” which says that users don’t have Fourth Amendment rights protecting information they voluntarily turn over to someone else. Courts have said that when you dial a phone number, you are voluntarily providing information to your phone company, which is then free to share it with the government.
Your cell phone makes matters even worse:
…cell phone companies now keep records about the locations of their customers’ phones. The government has argued that this “non-content” information should be available without a warrant. Yet such records amount to a detailed record of everywhere the phone’s owner has been in the past month; a much more intrusive form of surveillance than a list of the phone numbers a customer has dialed.
And let’s not forget your email accounts, either:
The third party doctrine also suggests that the users of cloud e-mail providers don’t even enjoy Fourth Amendment protections in the contents of their messages, since those have been voluntarily shared with third parties such as Google and Microsoft. One appeals court has ruled that a warrant is required, but so far most other courts have not followed that precedent.
As Lee notes, reporters enjoy a few protections average folks do not. But that’s almost beside the point. If the government is hell-bent on getting your information, it can find a way to get it.
Though if you envision yourself as the next great whistleblower, Nicholas Weaver has some tips for how you can (possibly) avoid the all-seeing eyes and ears of government authorities.
