There’s an ancient Chinese curse – “May you live in interesting times” Except it really isn’t an ancient Chinese curse. According to Wikipedia no Chinese source “has ever been found.” There is some speculation that the phrase might be related the difficult-to-translate Chinese idiom “It’s better to be a dog in a peaceful time than be a man in a chaotic period.” But that isn’t as catchy. Then there are others who think that “May you live in interesting times” is closer to a real Chinese curse…
‘May you come to the attention of those in authority.’
This particular ancient Chinese curse seems more relevant to the news of the day, and if you’ve been following the NSA telephone records controversy then you are probably aware that this particular curse has come true for all of us. Whether you agree or disagree with the reasons for or constitutionality of the NSA’s approach to bulk collection of what they call “metadata,” it’s clear that the government is indeed watching us. With three conflicting legal opinions in the span of two weeks it is also clear that we live in interesting times when it comes to privacy.
Let’s summarize this series of court rulings…
First, Madison Rolls in His Grave
First there was the 68-page ruling from Judge Leon in Klayman v. Obama. This ruling rejected the bulk collection of all of our telephone records, observing that Madison would be “aghast.” Judge Leon wrote:
I cannot imagine a more “indiscriminate” and “abitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.
Those of us interested in preserving privacy rights saw a bit of hope in this ruling. Finally, a non-secret court has issued a ruling placing a check on our quickly developing surveillance state. This is how the system should be working – a judge issues a ruling, the public has a chance to discuss what has happened. This is Civics 101.
Then, Leon’s Decision Is Reversed
In a head-spinning reversal, US District Judge William Pauley ruled that the NSA’s bulk collection of phone records under Section 215 of the Patriot Act was legal a few days later. Still great, right? Two judges have rendered opinions, both of them are public, there’s nothing unseemly happening behind the scenes here. No matter if you agree or disagree with the reversal, it is clear that this case is bound for the Supreme Court. This is how the system works. The central privacy issue of the day should be openly debated and our judicial branch plays an important function of informing both the public and our representatives.
…Then a Secret Court Rules in Favor of the NSA (Surprise!)
The FISA court then issues a ruling that upholds the very practice that was in question… in secret. Confused? You should be. We have two legal systems when it comes to privacy laws these days: a judicial system that is public and transparent in addition to a secret set of courts that are covered under the Foreign Intelligence Surveillance Act (FISA). The Leon opinion was entertaining, the Pauley opinion was public, and this other court – it’s all secret. So much for having a robust public debate about the central issue of our time.
We only know about this FISA court because the Director of National Intelligence, James Clapper, was gracious enough to declassify it. He did this “in order to provide the public a more thorough and balanced understanding of the program.” While it’s great that Clapper parted the veil a bit for us to see this decision, it is also frustrating.
Our legal system shouldn’t depend on secret courts issuing secret rulings and, in effect, creating secret laws when the issue at hand is this important. The ability of the public to have access to rulings like this shouldn’t depend on the prerogative of someone in the Executive Branch.
Virtru’s Position on Privacy
Virtru’s position is simple. We value the individual’s right to privacy, and we’re big fans of the Constitution. If the government can get a warrant based on the Fourth Amendment’s standard of “probable cause,” then we will comply. Traditional Fourth Amendment warrants serve an important purpose, and anyone who tells you that they won’t comply with a traditional warrant is making a promise they can’t keep while also remaining in business. Law enforcement can have valid reasons for a warrant.
What we’re never going to do at Virtru is go out of our way to cooperate on a “voluntary basis” with requests that fall short of a court order. Our legal advisors, one of whom has extensive experience dealing with the FISA courts and who has testified before the Senate on matters related to privacy and bulk collection, are helping Virtru craft a solid strategy to preserve individual privacy in these uncertain and interesting times.
We’re convinced that we don’t need to sacrifice individual privacy for our collective security. On the contrary, we think that Virtru, and technologies based on our approach, will help make individuals more secure from both bad actors and overzealous governments now and in the future.