Kyle Becker | On 05, Dec 2012

It’s disappointing, but unsurprising to learn from an NSA whistleblower that the U.S. government may be storing emails and other personal data on servers with FBI access. William Binney, a retired NSA codebreaker who ceased service in 2001 as a matter of conscience, warned Americans that nothing they do online is private — including sending emails.

The retired NSA analyst said the following to Russia Today:

[T]he FBI has access to the data collected, which is basically the emails of virtually everybody in the country. And the FBI has access to it. All the congressional members are on the surveillance too, no one is excluded. They are all included.

Although there is no explicit right to privacy in the Constitution, it can be inferred from the legal notion that one is “innocent until proven guilty.” Police also need probable cause in order to conduct surveillance and searches on Americans, in accordance with the Fourth Amendment:

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.

The government appears to be opening people’s emails without permission — a practice long associated with the worst totalitarian regimes of the twentieth century. That may be the consequence for many Americans accepting post-constitutional politics: some might be able to get some freebies at others’ expense, but it de-legitimizes the Constitution — long-held to be the law of the land and the sole source of the government’s powers.

The Constitution once compelled the government to respect individual rights, but since the “war on terror” was undertaken, Americans have been cowed into ceding their rights to the state.

Since the September 11th attacks, there have been 33 Americans officially killed by terrorism domestically. If one counts the Fort Hood (workplace violence) shooting, that brings the figure up to 46 — fewer than five Americans out of 300 million per year or a .0000016% chance of being killed in a terrorist attack per year.

In related news, the FBI is in a legal fight with Google over access to smartphones through obtaining passwords. Ironically, this reminds one of the Russian Kremlin’s complaints about not being able to initially break into Skype online phonecalls. In any event, the FBI’s rationales for broader online surveillance powers include not only terrorism, but also cyber-warfare and securities fraud.

So what is the American government doing with all the data it is alleged to be storing? There is the obvious answer of the huge data center being built in Utah, a giant monolith whose imprint would rival the Statue of Liberty’s. And with new “minority report” software being developed that can supposedly predict crimes before they are committed, we are really talking about a bleak path towards a micro-managed future.

This is not to say that terrorism not a threat, but it is saying that the cost to civil liberties is high — far too high — to keep entrusting the state to have unlimited police powers to combat a marginal threat. Congress should revisit the wisdom of allowing a police apparatus like the DHS, or intelligence agencies like the FBI, CIA, and NSA, to have free reign to violate Americans’ privacy whenever they see fit.