Your federal government is spying on you. Every post on Facebook. Every text message. Every email. Every website visited. You have essentially no privacy online.
In 2006, a consumer advocacy group obtained previously sealed sworn statements from a former AT&T technician Mark Klein, who testified that AT&T installed a fiberoptic splitter at one of its facilities in San Francisco. This splitter makes copies of all emails, web searches, and other internet traffic to and from AT&T customers and sends copies of all of the data to a room operated by the National Security Agency (NSA). This room has a dedicated line transmitting data out of AT&T’s facility to the NSA’s own servers. Later testimony revealed that this splitter was one of dozens of devices installed at many different facilities owned by AT&T.
The Washington Post and several other media outlets have run various stories about the NSA spying on our own citizens from time to time. Through the work of these journalists, it has been revealed that the NSA has utilized provisions located in Section 215 of the Patriot Act to collect “metadata” of phone traffic from virtually every American. Additionally, we have learned that the NSA spent over 1.5 billion dollars to build a massive data collection center in Utah five times the size of the U.S. Capitol Building complete with its own power plant. An article by Forbes estimated the power requirements of the spying facility at approximately 65 megawatts costing about $40 million per year to generate. Further, it was estimated that the facility used 1.7 million gallons of water per day to cool the massive computers used to conduct surveillance on all Americans.
Nearly all public officials swear an oath to uphold the Constitution, and any reasonable interpretation of the Constitution would hold the NSA’s domestic spying as unconstitutional. I do not believe that there is any valid interpretation of the Fourth Amendment that permits the government to collect and store U.S. citizens’ online communications. Yet still, the NSA continues to do this without any suspicion of wrongdoing by citizens, and without any court or congressional oversight. This kind of surveillance of citizens begs to be abused in the long run. It does not matter if we trust the individuals in office at a particular moment. Allowing the government to collect our data without reason or cause is absurd and unconscionable.
Now it appears that this domestic spying program may devastate our international trade with Europe. Under European Union law, citizens of the EU have a fundamental right to privacy, with most online activities protected by something called the General Data Protection Regulation. A German privacy activist named Max Schrems has undertaken a series of lawsuits beginning in 2013 to challenge the adequacy of U.S. law to protect EU privacy rights. Recently, an EU court agreed with Mr. Schrems holding that the U.S. government’s ability to collect data on EU residents without proper procedural protections makes it impossible for U.S. firms to be generally capable of complying with EU law.
In July the Office of Information and Data Protection Commissioner ruled that European countries cannot use contracts to work around data privacy laws, and essentially all data transfer to the United States is now illegal. This ruling has been stayed pending further appeal, but unless a compromise can be reached, nearly all internet traffic with Europe could be halted.
The costs of this trade disruption will be enormous. According to the U.S. Chamber of Commerce, Transatlantic trade generates upward of $5.6 trillion, of which at least $333 billion was related to digitally-enabled services. The truth is that likely far more of that overall commerce is facilitated in some way by cross-border data transfers.
All of these concerns could be obviated if Congress were to apply ordinary due process requirements to our nation’s surveillance programs. There is no reason for our government to spy on all Americans at all times. The NSA domestic spying of internet activity violates our constitution, and it appears to violate European law, too. It might just crash our economy if something isn’t done soon.
John Judkins is a Greenfield attorney.