This article was originally published by the Electronic Frontier Foundation on April 15.
Let’s just imagine we could transport an Internet-connected laptop back to the 1790s, when the United States was in its infancy. The technology would no doubt knock the founders out of their buckle-top boots, but once the original patriots got over the initial shock and novelty (and clearing up Wikipedia controversies, hosting an AMA and boggling over Dogecoin), the sense of marvel would give way to alarm as they realized how electronic communications could be exploited by a tyrant, such as the one from which they just freed themselves.
As America’s first unofficial chief technologist, Benjamin Franklin would be the first to recognize the danger and take to trolling the message boards with his famous sentiment: Those who would trade liberty for safety deserve neither. (And he’d probably troll under a fake handle, using Tor, since the patriots understood that some truths are best told with anonymity.)
Today, the Tea Party movement continues the legacy of the founders, championing the rights guaranteed by the Constitution and Bill of Rights. Never afraid of controversy, Tea Party activists and elected leaders are fighting against mass surveillance in the courts and in the halls of state legislatures and Congress.
Each year on April 15, Americans pay taxes that keep the government running. It’s a time for reflecting upon whether that money is funding a government for the people or a government that is undermining the people, supposedly for their own good. After a watershed year of newly disclosed information about the National Security Agency, the Tea Party has plenty to protest about.
How The Founders Fought Mass Surveillance
Mass surveillance was not part of the original social contract — the terms of service, if you will — between Americans and their government. Untargeted surveillance is one reason we have an independent country today.
Under the Crown’s rule, English officials used writs of assistance to indiscriminately “enter and go into any house, shop cellar, warehouse, or room or other place and, in case of resistance, to break open doors, chests, trunks, and other package there” in order to find tax evaders. Early patriot writers, such as James Otis Jr. and John Dickinson, railed against these general warrants; and it was this issue, among other oppressive conditions, that inspired the Declaration of Independence and the Fourth Amendment.
James Madison drafted clear language guaranteeing the rights of Americans, and it bears reading again in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Centuries later, the principle still applies, whether we’re talking about emails or your mobile phone. As the Tea Party activists at FreedomWorks told us when we consulted them for this post: The Fourth Amendment does not stop at technology’s door.
(For a more in-depth historical review, check out former EFF legal intern David Snyder’s essay, “The NSA’s ‘General Warrants': How the Founding Fathers Fought an 18th Century Version of the President’s Illegal Domestic Spying.”)
Tea Party Versus Big Brother
The Tea Party movement is closely associated with the right to bear arms, religious rights and tax freedom. But as Brian Brady, a prolific Tea Party activist in San Diego County we also consulted, said: The movement must embrace the Constitution as a whole. Threats to privacy, he says, are also threats to freedom of speech, religion and association. Property rights mean nothing if the government can search your home or computer without probable cause.
In other words, mass surveillance is a manifestation of big government.
Tea Party activists don’t shy away from confrontations that may put them at odds with other groups (particularly on the left); but no one can deny that on the subject of mass surveillance, the movement is on the frontlines protecting every American’s rights.
TechFreedom and gun-rights groups, such as the CalGuns Foundation and the Franklin Armory (named after Ben), have joined unlikely allies such as Greenpeace and People for the American Way to sue the NSA. Represented by the Electronic Frontier Foundation, the plaintiffs argue that collecting phone metadata (your number, who you called, when and for how long you spoke), chills the ability for these groups to associate freely, as guaranteed by the First Amendment as well as the Fourth Amendment. FreedomWorks and Sen. Rand Paul have also filed a class action lawsuit against the NSA on similar grounds.
Conservative attorney and founder of Judicial Watch Larry Klayman was the first plaintiff to challenge the program’s unconstitutionality. So far, his lawsuit in Washington, D.C. has been successful. In December, the federal judge in the case wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.”
Tea Party-affiliated lawmakers have also been pushing back against mass surveillance with a variety of bipartisan legislative reforms; Rep. Justin Amash, for example, came within a few votes of cutting the NSA’s telephone metadata program funding with a budget amendment last July. State legislators who align with the Tea Party have also sponsored bills across the country condemning the NSA, from California State Sen. Joel Anderson’s successful resolution calling for an end to the call records program to Michigan Rep. Tom McMillin’s call for the Department of Justice to prosecute Director of National Intelligence James Clapper for misleading Congress.
Tax, Spend And Surveil
Reason magazine has an excellent essay about IRS and privacy, outlining how the IRS obtains, scours and fails to secure personal data collected from taxpayers, while tax-reform advocate Grover Norquist wrote a worthwhile op-ed in The Daily Caller today about how the IRS exploits the outdated Electronic Communications Privacy Act. But it’s also important to consider that the taxes the government collects ultimately fund the surveillance state. “No taxation without representation” was the rallying cry of the American Revolution, and yet here we are today, with the NSA conducting surveillance without adequate checks and balances. Members of Congress complain that they haven’t been properly briefed on the NSA’s programs and judicial approval of these programs is conducted by a secret court that only hears the government’s side of the story. On the local level, law enforcement agencies are adopting new surveillance technologies such as automatic license plate readers, facial recognition and Stingrays with little public input or other oversight.
On the whole, maintaining the mass surveillance state is expensive. There are 17 (that’s right, 17) different federal agencies that are part of the “intelligence community,” each of them involved in various, interconnected forms of surveillance. There’s no concrete evidence of how it has made us safer, but there’s plenty of concrete evidence of how much it has cost. The bottom line? We’re paying the government to unreasonably intrude on our lives. The budget for intelligence in 2013 was $52.6 billion. Of that, $10.8 billion went to the NSA. That’s approximately $167 per person in the United States.
For a prime example of the wasteful spending, one only need to read Sen. Tom Coburn’s report “Safety at Any Price,” which outlined the inappropriate spending done under the Department of Homeland Security’s grant program (such as paying for “first responders to attend a HALO Counterterrorism Summit at a California island spa resort featuring a simulated zombie apocalypse”). This followed on the heels of a harsh bipartisan Senate report criticizing the extreme waste at fusion centers around the country. Federal funds were used to purchase big screen TVs, decked-out SUVS and miniature cameras. To make matters worse, the report found that fusion centers violated civil liberties and produced little information of any use.
Mass surveillance is a symptom of uncontrolled government overreach. The question is: What’s the cure?
Defending Privacy Is A Patriotic Duty
While every single person has cause to be alarmed by surveillance, those who criticize government policies have particular reason to be concerned. Those who have new, or not yet popular, ideas (or, in the case of the Tea Party, old and popular ideas in resurgence) are often targets of overreaching surveillance. It’s not a partisan issue; it’s a constitutional issue.
Activism is most effective when is happens at the personal, local and national levels. And the Tea Party has proven it knows how make a ruckus, whether it’s on a personal blog or outside the White House. America needs the Tea Party to keep applying that patriotic passion to NSA reform.
We have also just created a new collection of resources for grass-roots activists, including tips on how to organize public events and use the media to spread the word about your issues, as well as a collection of one-page informational sheets that make it easy to explain these issues. And above all, speak out. Help EFF stop bills that attempt to legalize mass surveillance and join EFF in demanding real reform.
Stopping mass surveillance — it’s what the first patriots did, and it’s what today’s patriots are doing right now.