What is old is new again. Government surveillance is in the news, again. The cycle started with President Trump alleging former President Obama wire tapped Trump Towers. The cycle continued when Wikileaks released a trove of documents relating to the Central Intelligence Agencys hacking tools.
Whether President Trumps allegations have merit, or whether they are baseless should not matter. Whether the CIA spied on United States citizens or whether it did not should not matter. What should concern citizens is the governments ability to spy on them.
Consumers place confidence in the ability of a manufacturer, whether Apple, Google, or others, to secure electronic devices from prying eyes. Gone are the days when secure storage meant purchasing safes, lockboxes, or lockable file cabinets. Now, secrets are hidden within complex strings of ones and zeros. The most secure electronic systems cannot offer perfect privacy, but operate to obscure meaningful data better than the competition.
Technology can help obscure meaningful information. Technology also provides government increased access to a citizens private life, habits, and private thoughts. Instead of serving warrants and physically searching houses, computers, and other tangible items, government officials can remotely install malware, access electronic devices and seize photographs, document files, and contact lists. The Vault 7 revelations, along with Edward Snowdens prior leaks, demonstrate the government can remotely activate microphones and cameras embedded in electronic devices, including televisions. The government can turn all types of devices, including televisions, into spying tools.
Assuming the government follows proper procedures, it has a number of options minimally to comply with Fourth Amendment warrant requirements if it invokes national security as an excuse for surveillance. The Foreign Intelligence Surveillance Act (FISA) provides the executive branch broad leeway when conducting surveillance for national security purposes. The first option permits the President to authorize warrantless surveillance in certain circumstances. The second options allows the Attorney General to authorize warrant applications in other circumstances.
Both warrantless and warranted surveillance are classified. FISA requires the Attorney General to submit semi-annual reports to Congress. Those reports, though, do not need to contain detailed information. The reports need only list the total number of applications, the number of applications approved, and the criminal cases where information gathered is used.
Technology does not just provide governments increased access to a citizens private information; it also provides the government the ability to conceal any unauthorized access. The government can spy on citizens without even the most savvy technology expert knowing. And if the government believes it can completely avoid detection, or make it look like a foreign government was behind a hack, why should it apply for warrants? After all, the government could attribute the information gleaned to other sources, just as it has with cell site simulators.
Government surveillance relating to national security poses a unique threat compared to other criminal investigations. The president possesses significant authority to investigate foreign threats. The exercise of that authority, though, threatens U.S. citizens First Amendment freedom of speech rights. When conducting surveillance for national security purposes, it is likely the government will both record protected speech and will use its authority to monitor groups with politically incorrect viewpoints.
Well before technology permitted widespread surveillance, Supreme Court Justice Powell wrote,
History abundantly documents the tendency of governmenthowever benevolent and benign its motiveto view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect domestic security.
Government surveillance, of political right or political left groups, makes people think twice before speaking contrary to the political establishment. State surveillance of Black Lives Matter allegedly chilled members desire to engage in political discourse about the issues of our time. Similarly, surveillance of Trump officials was used to impeach the credibility of Lt. Gen. Flynn, attack Attorney General Sessions, and generally to delegitimize President Trump. Progressive groups, right leaning groups, and individuals in the government who threaten its power are equally subject to government surveillance and potential that surveillance will be used to silence their dissent.
Government may use technological advances to operate on the edges of Constitutional permissibility. The threats government surveillance pose to First Amendment freedom of speech rights should overshadow any discussion on the propriety of the surveillance state, just as they did before the proliferation of modern technologies, such as the computer and smartphone.
The Fourth and First Amendments are inexorably linked. Ignoring one will threaten the other. In the words of Justice Powell, The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
Jonathon Paul Hauenschild, J.D., is a technology policy analyst. He is the founder and principal of Franklin Adams & Co., LLC.
The views expressed by contributors are their own and are not the views of The Hill.
Go here to see the original:
How the surveillance state threatens free speech | TheHill - The Hill (blog)
- Here's what the law says about protesting on Texas college campuses - The Texas Tribune - April 25th, 2024 [April 25th, 2024]
- The awkward truth about sex and free speech | Nina Welsch - The Critic - April 25th, 2024 [April 25th, 2024]
- Get the Facts: How far does the First Amendment go? - WDSU New Orleans - April 25th, 2024 [April 25th, 2024]
- NC school adopts free speech policy after firing professor who opposed critical theory - ADF Media - April 25th, 2024 [April 25th, 2024]
- Biden's Government Takeover of the Internet Threatens Freedom of Speech - RealClearPolicy - April 25th, 2024 [April 25th, 2024]
- Professor tackles subject of limiting freedom to express - Yahoo News Canada - April 25th, 2024 [April 25th, 2024]
- Louisiana Tech earns top rating for free speech - Foundation for Individual Rights and Expression - April 25th, 2024 [April 25th, 2024]
- Freedom of speech 'under assault' at Palestine protests in US universities - The National - April 25th, 2024 [April 25th, 2024]
- Is TikTok Protected Speech Or Threat To Americans? Wyoming Legislators Split - Cowboy State Daily - April 25th, 2024 [April 25th, 2024]
- Free Speech Aids Racial Justice. Activists Must Defend It. | Opinion - Harvard Crimson - February 16th, 2024 [February 16th, 2024]
- Progressives Are Ditching Free Speech To Fight 'Disinformation' - Reason - February 16th, 2024 [February 16th, 2024]
- There is a way out of cancel culture but it's not free speech - Times Higher Education - February 16th, 2024 [February 16th, 2024]
- Editor's take: Limiting hate speech not a First Amendment violation - The Pajaronian - February 16th, 2024 [February 16th, 2024]
- Israel's Proposed 'Terror Incitement' Law Is a Dangerous Threat to Freedom of Speech - Haaretz Editorial - Haaretz - February 16th, 2024 [February 16th, 2024]
- Colorado bill tasking attorney general to study online 'misinformation' sparks First Amendment debate - coloradopolitics.com - February 16th, 2024 [February 16th, 2024]
- 10 Worst Censors: 2024 | The Foundation for Individual Rights and Expression - Foundation for Individual Rights in Education - February 16th, 2024 [February 16th, 2024]
- Harvard University's Lifetime Censorship Award: Impact on Freedom of Speech and Journalism - Medriva - February 16th, 2024 [February 16th, 2024]
- Reading is freedom of speech, says 'ABCs of Book Banning' director - KCRW's This...Is Interesting - Podcast en iVoox - iVoox - February 16th, 2024 [February 16th, 2024]
- Freedom of speech or lack of civility? Resident perturbed by others berating Killeen City Council and mayor - The Killeen Daily Herald - October 16th, 2023 [October 16th, 2023]
- Harvard Students Should Know Freedom Of Speech Is Not Freedom From Consequences - The Federalist - October 16th, 2023 [October 16th, 2023]
- FIRE launches six-figure free speech campaign with primetime ... - Foundation for Individual Rights in Education - October 16th, 2023 [October 16th, 2023]
- UGS responds to free speech concerns on campus - The Stanford Daily - October 16th, 2023 [October 16th, 2023]
- UCI Year of Free Speech kicks off with virtual event - UCI News - October 16th, 2023 [October 16th, 2023]
- Book review: A Constitution To Keep: Sedition And Free Speech In ... - Maktoob media - October 16th, 2023 [October 16th, 2023]
- Protestors, supporters gather on HUB lawn for Riley Gaines' Free ... - The Daily Collegian - October 16th, 2023 [October 16th, 2023]
- Editorial: When is free speech not free on college campuses? - TribLIVE - April 27th, 2023 [April 27th, 2023]
- How do you handle free speech issues in higher education, popular discourse? - University of Illinois Urbana-Champaign - April 27th, 2023 [April 27th, 2023]
- Free speech protections are under threat in Texas Legislature - The Dallas Morning News - April 27th, 2023 [April 27th, 2023]
- Should Irish universities introduce mandatory free speech classes? - The Irish Times - April 27th, 2023 [April 27th, 2023]
- Florida House approves bill that would change rules around campus ... - WUFT - April 27th, 2023 [April 27th, 2023]
- Free speech bill 'could protect extreme views' - Times Higher Education - April 27th, 2023 [April 27th, 2023]
- Ronald Collins and Ronnie Marmo: Comedy clubs are free speech ... - Independent Record - April 27th, 2023 [April 27th, 2023]
- A notable foundation for freedom of speech - Newsday - April 27th, 2023 [April 27th, 2023]
- Troy, Alabama A&M receive poor 'red' rating from campus free ... - 1819 News - April 27th, 2023 [April 27th, 2023]
- Freedom of Speech Pros and Cons: What Both Sides Think - March 8th, 2023 [March 8th, 2023]
- What is the freedom of speech? - Alliance Defending Freedom - January 25th, 2023 [January 25th, 2023]
- freedom of speech | Wex | US Law | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- First Amendment: Freedom of Speech | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- Freedom of speech online: What are the Florida and Texas laws the US top court could hear a challenge to - The Indian Express - January 25th, 2023 [January 25th, 2023]
- Elon Musk says new Twitter policy is freedom of speech & not freedom ... - January 4th, 2023 [January 4th, 2023]
- CNN Calls Freedom of Speech 'Nonsense' in Moronic Rant - December 12th, 2022 [December 12th, 2022]
- Ex-CNN journo and Nobel Peace Prize laureate Maria Ressa explains why ... - December 12th, 2022 [December 12th, 2022]
- Hate speech - Wikipedia - November 27th, 2022 [November 27th, 2022]
- Freedom of Speech and Expression | CSCE - November 25th, 2022 [November 25th, 2022]
- Why Is Freedom Of Speech Important? The Relevance Explained - November 25th, 2022 [November 25th, 2022]
- 'Freedom Of Speech, But Not Freedom Of Reach': Musk Reinstates Kathy Griffin And Jordan Peterson Amid New Policy But Not Trump Yet - Forbes - November 21st, 2022 [November 21st, 2022]
- Freedom of speech is in jeopardy - The Ridgefield Press - October 15th, 2022 [October 15th, 2022]
- The Alex Jones trap: How 'owning the libs' can turn into a self-own for conservatives - Washington Examiner - October 15th, 2022 [October 15th, 2022]
- Just released: The 2022-2023 College Free Speech Rankings - Foundation for Individual Rights in Education - September 7th, 2022 [September 7th, 2022]
- Russian Court's Ban of Newspaper Novaya Gazeta is a Punch in the Face of Freedom of Speech - Novinite.com - September 7th, 2022 [September 7th, 2022]
- Bangladeshi Editor Rifat Munim Supports Salman Rushdie's Freedom Of Speech: 'Why React To The Book Or The Cartoons In This Childish Way? Why Show... - September 7th, 2022 [September 7th, 2022]
- Crikey! The exclamation of Free Speech - RadioInfo Australia - Radioinfo - September 7th, 2022 [September 7th, 2022]
- Batley row 'shows how extremists are using blasphemy to attack free speech' - The Telegraph - September 7th, 2022 [September 7th, 2022]
- Expansion of Title IX Tramples First Amendment - California Globe - September 7th, 2022 [September 7th, 2022]
- BRACK: S.C. Senate is poking free speech bear on abortion Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Will AG Ken Paxton join the fight for freedom of speech? - Wilson County News - July 29th, 2022 [July 29th, 2022]
- The UK Government Wants to Scrap the Human Rights Act. Here's What to Know. - Global Citizen - July 29th, 2022 [July 29th, 2022]
- Cancel culture empowers the powerful at everyone elses expense - Foundation for Individual Rights in Education - July 29th, 2022 [July 29th, 2022]
- Repressive executive order from UNC Chapel Hill student government cuts off funding for pro-life individuals, causes - Foundation for Individual... - July 29th, 2022 [July 29th, 2022]
- Editorial: Alex Jones' lessons on the First and Sixth Amendments - CT Insider - July 29th, 2022 [July 29th, 2022]
- NEW for 7/29: How abortion now works in S.C., and more Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Why Does The State Panic Over Free Speech? - The Friday Times - July 27th, 2022 [July 27th, 2022]
- How to Fix the Bias Against Free Speech on Campus - The Atlantic - July 17th, 2022 [July 17th, 2022]
- Universities are in denial over the free-speech crisis - Spiked - July 17th, 2022 [July 17th, 2022]
- Who Really Benefits From the First Amendment? - Tablet Magazine - July 17th, 2022 [July 17th, 2022]
- Legal Eagle: Is free speech abused to flout others rights? - Free Press Journal - July 17th, 2022 [July 17th, 2022]
- Free speech 'stifled' as universities cancel record number of speakers - The Telegraph - July 17th, 2022 [July 17th, 2022]
- The Online Safety Bill could lead to the biggest curtailment of free speech in modern history - The Telegraph - July 17th, 2022 [July 17th, 2022]
- LAWSUIT: Professor sues University of Washington after admins punish him for 'inappropriate' opinion - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- VICTORY: Art institute reverses expulsion for student who retweeted sexual art - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- Twitter and Freedom of Speech | News, Sports, Jobs - The Mining Gazette - Daily Mining Gazette - June 26th, 2022 [June 26th, 2022]
- Amber Heard, the ACLU, and the Future of Free Speech - Reason - June 26th, 2022 [June 26th, 2022]
- In my view: Freedom of speech is important - Slough and Windsor Observer - June 26th, 2022 [June 26th, 2022]
- New AGB Resource Prepares Higher Education Board Members to Balance Freedom of Speech with Diversity, Equity, and Inclusion - PR Web - June 26th, 2022 [June 26th, 2022]
- 'What's the point inviting me on!' Piers Morgan and student erupt in free speech row - Express - June 26th, 2022 [June 26th, 2022]
- Binance CEO says 'free speech is very hard to define' - Business Insider - June 26th, 2022 [June 26th, 2022]
- The Deeper Significance of Justice Thomas's Second Amendment Opinion - The Epoch Times - June 26th, 2022 [June 26th, 2022]
- Twitter and freedom of speech - Washington Times - June 22nd, 2022 [June 22nd, 2022]
- Bill of Rights to strengthen freedom of speech and curb bogus human rights claims - GOV.UK - June 22nd, 2022 [June 22nd, 2022]
- Twitter and the freedom of speech | Opinion | journal-spectator.com - Wharton Journal Spectator - June 22nd, 2022 [June 22nd, 2022]