Some one should write a book tracking the ebb and flow of the relative power of the three branches of government over the course of American history and how that tide shaped, and was shaped, by the circumstances. For example, Congress dominated most of the post-Republic, antebellum period (exception for Jackson), until the Civil War when Lincoln loomed large over the landscape. Andrew Johnson and Ulysses Grant made a hash of the executive while the Supreme Court defined the practical meaning of the Reconstruction Amendments (13th, 14th, and 15th) more often for the worse. After three presidential assassinations, and a customs collector for president (Chester Arthur), Teddy Roosevelt renewed the executive branch, sometimes with bluster and sometimes with substance. Congress became mired in politics while the Court went retrograde on the progressive fronts of race, labor and economics. I could keep going, but you get my drift.
Why bring this idea up? Because the more I contemplate what historians will make of our era the more I see a very critical assessment. Let’s drill down on one example: privacy – the single most important issue of the 21st century. Congress has squandered its responsibilities while the executive runs roughshod. The Court, meanwhile, brackets the copper-on-the-beat’s most obvious stretches of the Fourth Amendment (warrants for GPS trackers on defendant car tires and contents of cell phones) but tellingly is silent on our secret FISA Court. I wager historians will note that the Supremes allowed themselves to be eclipsed by the Foreign Intelligence Surveillance Court while it blithely continued to collect of telephone metadata, acquire business records for nothing more than a note in a file, and operate on the premise of three circles out of a “person of interest to a terrorist investigation” that has exponential consequences when measured in the calculus of electronic communications on a global Internet.
It does not have to be this way. People have a hand in the history they create. Isn’t that the essence of leadership? The moment you cut away pomp and circumstance, stand up, blow away the smoke and expose the mirrors to chart a clear path? Who among us will do that? Who will be schoolmaster(s) to that unruly classroom of Congress and demonstrate what responsibility means to what is otherwise a (male) adolescent style of American politics?
I’ll give you the specifics that would make a difference. Reform the $%^&*() antiquated electronic surveillance laws of the United States, the Electronic Communications Privacy Act. Every time a terrorist act occurs in the US or now in Europe, executive hawks bare their teeth greedily for still more power to gather information in a global economy based on it. In large part they are able to do so because legislature's failure to update this law allows the executive to exploit gaps at the expense of fundamental rights to privacy established in the case law of the Supreme Court in the 1960’s. Also, Congress should repeal the Foreign Intelligence Surveillance Act. The law of unintended consequences has ironically turned an Act intended to cabin foreign surveillance into a carte blanche to execute it not only across the globe but not infrequently in our own country. Playing on natural emotions of fear and retrenchment in the face of outrageous violence, these leaders are already over at FISA to get their rubber stamp on a slew of new orders. Not that in real time we will ever know about it given the Congressional lapse in judgment to fail to address the travesty that has become this modern-day Star Chamber.
It is not for a want of trying. For some time now strange bed fellows have called for ECPA reform: for example, the Center for Democracy and Technology and major Internet corporations usually at loggerheads, such as Google and Microsoft. The LEADS Act, which lays out a Fourth Amendment process for electronic content held by a U.S. corporation with servers on foreign soil, speaks directly to the Microsoft v. U.S. “Ireland” case currently in the Second Circuit. Tell Congress you expect them to pass it. Reasonable, updated-to-the-Internet legal access protocols that respect our allies and trading partners would go a long way towards creating the necessary trust to re-establish our good name abroad and join as one, unified effort to fight terrorism. There is a domestic economic argument as well. Cloud computing relies on trust. A lack of trust in the U.S. government tremendously handicaps U.S. Internet corporate interests. That, by the way, is an essential point of the Schrems case. So even if it is your wallet that talks – do you really want for the failure of Congress U.S. Internet companies to tank the economic health of our country that they support? – let it speak.
It is time to bring law and technology into harmonized perspective that echoes hallowed constitutional rights. I can think of no better way to honor the victims of 9/11 than to preserve enduring American values for which they and their families have suffered. Or now to honor France. And until a real leader galvanizes global cooperation in the face of terrorists, almost inevitably there will be another place. The United States of America must clean up its surveillance posture to stand an honest chance at that mantel of leadership. History will not look kindly unless we claim our right to shape it.
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