Why do federal agents have more privacy rights than we do?
Hudson Crozier
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A newly declassified report from the Office of the Director of National Intelligence, dated January 2022, explains how federal agents obtain massive amounts of digital data on Americans without warrants.
The data in question is what the authors call “commercially available information,” a euphemism for data that tech and smartphone companies are selling to the government. This gives the government insight on a variety of “political, religious, travel, and speech activities.”
NO DEI MONEY FOR ANY FEDERAL AGENCY
One page of the report on “sensitive and intimate” data is truly alarming. It lists information on “political opinions, religious or philosophical beliefs,” “health,” “travel records, attorney-client information,” “sexual activity,” “records regarding purchases, library records,” “communications,” and “groups or individuals with whom [citizens] associate.”
The report explains that the legal justification for this is not a search warrant, suspicion of a crime, or any conventional threshold. Agents regard information available for purchase as “public” by definition, and the only limit they must worry about is how much taxpayer money they have to spend on it.
Federal agencies have been buying personal data for years, and as usual, they won’t tell us why on earth they’re doing it. The ODNI doesn’t even know which intelligence agencies are doing it, as noted in the report.
Let’s compare this with all the secrecy the Washington ruling class enjoys. Federal agents classify tens of millions of documents each year without needing a particularly compelling reason. But if you take any one of them, you get arrested, even if you’re a former president.
In fact, the only reason we’re finding out about the ODNI’s report is because Director of National Intelligence Avril Haines was kind enough to declassify it at the request of a senator. Thankfully, she agrees that “Over-classification undermines critical democratic objectives.”
What happens when federal agents break the rules regarding our digital privacy? Just ask the FBI, which abused a warrantless surveillance tool under the Foreign Intelligence Surveillance Act over 278,000 times in the span of a few months, according to a recently disclosed court document. The FBI simply promised that it wouldn’t happen again, essentially saying, “Oopsie!”
As many across the political aisles agree, the executive branch makes an absolute mockery of our constitutional right to privacy and protection from unreasonable searches. But the system is so broken that we rarely see punishment for it, and in some cases, including data purchasing, it’s not technically illegal. The most that ever happens is a tongue-lashing from members of Congress, a bill that goes nowhere, and negative press.
The authors of the ODNI report acknowledge that the intelligence community “needs to develop more refined policies” on data purchasing, but we can’t expect that to happen from within. Since the 9/11 attacks, the government has spent over two decades creating the largest national security apparatus America has ever seen and has become far too comfortable with its invasive habits.
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Even now, as the FISA surveillance tool is set to expire this year, Assistant Attorney General for National Security Matthew Olsen has urged Congress to renew it by declaring, “We must not forget the lessons of 9/11.”
He’s right, but not in the way he thinks. Lawmakers should reject the claim that arbitrary spying on people’s personal lives has anything to do with keeping our homeland safe. Through legislation, they should rein in the surveillance state.
Hudson Crozier is a summer 2023 Washington Examiner fellow.