Things The Government Gets Wrong By 180 Degrees -- Privacy

Despite what you may have heard about Supreme Court cases like Roe v. Wade, the Federal Constitution doesn't ever mention a right to "privacy," at least not using that word.  What it does mention, in the Fourth Amendment, is "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."  In other words, to the extent there is any right to privacy mentioned in the Constitution, it is a right as against the government only; there is no privacy protection as to other private individuals or companies.

That seems right to me.  It's the government that has the monopoly on legitimate coercive force, the government that can put you in jail, the government that can perpetuate its own power by getting and using potentially damaging information about its challengers and opponents.  The serious threat to privacy is from the government.

Well, advance forward to today's upside-down world.  Today the Federal government passes endless laws and regulations supposedly to protect our privacy, but always those laws and regulations offer protections only against private actors.  As to the government itself, all the statutes just give the government more and more access to our information.

For example, consider the new Health Information Privacy rules coming out of HHS.  They are extremely complex and expensive to comply with.  God help the doctor or hospital that accidentally discloses your health information to the wrong private entity.  But don't worry, here in the list of permitted disclosures of your information we have no fewer than twelve exemptions for the government, for anything from "public health activities" to "health oversight activities" to "research" to "law enforcement purposes."  So if the FBI wants your health information, no more need for clearing a "reasonableness" hurdle with a judge or getting one of those those pesky warrants.  And besides, how can we expect to achieve perfect fairness in the delivery of healthcare if the government can't monitor the details of everybody's diseases and treatments?

Or consider the Fair Credit Reporting Act.  That's the Act that's supposed to protect your information in the hands of the credit bureaus from improper disclosure.   But after long lists of restrictions supposedly to those with a "proper purpose" to be seeking your information, we come to this in Section 1681(f): "a consumer reporting agency may furnish identifying information respecting any consumer, limited to his name, address, former addresses, places of employment, or former laces of employment, to a governmental agency."   Again, no need for subpoena or warrant.  If you are the government (at any level) ask and ye shall receive!

Well, you say, that's not too bad because it's only identifying information; they can't actually get the details of your financial transactions behind your back, can they?  Well, yes they can.  The main source of authority is Section 505 of the USA PATRIOT Act, authorizing what are called National Security Letters.  These are the things that the government can send to banks, cell phone companies, or ISPs instructing them to turn over all their information about you and, by the way, don't tell the subject that you have gotten this letter or it is a felony.  Any need for a warrant for that?  The government's position is no, because in dealing with a third party (such as a bank or telephone company) you gave up any "reasonable expectation of privacy."  Of course, it's impossible to challenge a NSL if the bank or telephone company doesn't tell you about it, and they are not allowed to tell you about it.

As noted by me here, in March a Federal judge in California declared unconstitutional under the First Amendment the portion of the NSL statute that purported to make criminal the public disclosure of the receipt of the letter.  With any luck that will get to a higher court and get affirmed.  But even if it is affirmed and sticks, you will be relying on the decency of your bank or telephone company to tell you if the government comes snooping around.  Meanwhile, you have no choice but to assume that the government is monitoring all your financial transactions and phone calls behind your back. 

It just seems like the concept of privacy has turned around 180 degrees from where it started out.