The Solution to Government Snooping? Privatize Collection and Search of Data

Published August 15, 2013

It seems like every week since we first heard of Edward Snowden he delivers an even worse example of the federal government’s unconstitutional collection and abuse of our data.  Time and again the Barack Obama administration denies Snowden’s claims – even though time and again he has the documentation.

Snowden’s latest revelation is a program called XKeyscore (XKS).  Which allows low-level National Security Agency (NSA) analysts to:

Obtain ongoing “real-time” interception of an individual’s internet activity….

XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant….

The purpose of XKeyscore is to allow analysts to search the metadata as well as the content of emails and other internet activity, such as browser history….

This is just the latest incredible violation of the Constitution’sFourth 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.

Thousands of government officials are searching the content of our phone calls, Web histories, emails, text messages, instant messages and video chats – without Warrants.

And the government is building an NSA storehouse that is seven times larger than the Pentagon:

“Communications about millions of innocent Americans are being stored for five years in a government database—whether or not there is any reason to search our call records, and I don’t think our Constitution allows that,” says Alex Abdo, staff attorney for the American Civil Liberties Union’s National Security Project.

He’s right.  This is the epitome of “unreasonable search and seizure.”

We encounter a similar problem with a government-first approach to Cyber Security.  The amount of data through which one must look to protect our networks is staggering.  If the government takes the lead, it totally bypasses the Fourth Amendment – leaving us open to exponentially more of the kinds of abuses Snowden keeps detailing in National Security.

So we should do with National Security for what we long ago called in Cyber Security – outsource the first line of defense.

The federal government absolutely should not be unilaterally seizing and storing this unfathomable amount of information.  Let alone allowing thousands of low-level staffers to search it whenever they alone decide.

The solution?  Rather than forcing communications companies to turn over the data – why not pay them to store and search it?

There is no Fourth Amendment violation until the government seizes it – this preempts that.  These companies already have it, so the government wouldn’t have to do something to get it like tap directly into servers – as they’re already doing with (at least) nine Internet companies.

Pro-data-grab politicians say the government uses the data and its search capabilities for things like finding American citizens who are interacting with identified international terrorists.  The private companies can easily do these searches when asked by the government.

If in their searches they find evidence of Americans connecting with said international terrorists, the companies and the government go to a judge and get a warrant to allow the companies to turn it over.

But it is a certain, proscribed, finite amount of information immediately relevant to a specific case – not five years’ worth of every last byte of our phone call and Internet data.

This ends the gi-normous Fourth Amendment problem – with violations now occurring every second of every day – while keeping us at least as safe.  If not safer – in whom do you have more confidence of proper execution: the private sector or the federal government?

Now, what else can we do for the nation?
Seton Motley is the founder and president of Less Government.  Please feel free to follow him on Twitter (@SetonMotley) and Facebook.