This op-ed originally appeared in the Standard-Examiner.
In an often overlooked attempt to restore the foundational principles of liberty, it’s states that are leading the way. In particular, Utah has emerged as a leader by working to ensure citizens are free from the unconstitutional searches and invasive law enforcement investigative techniques.
Federal norms involving bulk data collection highlight the need for states to push back against invasive policing practices. Recent revelations show the Central Intelligence Agency secretly collects bulk data containing troves of Americans’ private information without congressional knowledge or oversight. This agency overreach highlights a harsh reality about the state of government respect for individual liberties. Violating the privacy rights of Americans is a norm at the highest levels of federal law enforcement. State and federal legislatures should enact legislation to ensure Americans’ data is protected from bulk collection lacking probable cause.
The now public April 2021 letter from Sens. Ron Wyden of Oregon and Martin Heinrich of New Mexico to security agency heads called for a transparent review of CIA practices to shed light on the collection, retention and use of data the agency routinely collects on American citizens.
The core problem leading to widespread agency abuse of Americans’ privacy is this: In matters of national security, federal law enforcement agencies are not subject to constitutional restrictions. In this case, the CIA was found to operate outside both constitutional and statutory authority, instead relying on the implementation of a 1980s Reagan “Executive Order 12333 Central Intelligence Agency Deep Dive II.”
Other partially declassified reports included U.S. Privacy and Civil Liberties Oversight Board staff recommendations that show the CIA lacks a sufficient framework for the collection, classification and retention of sensitive citizen data. Indeed, PCLOB’s first recommendation states the CIA should “draft implementing guidance” for the agency’s Attorney General Guidelines. PCLOB also recommended the privacy and civil liberties officer, the CIA’s self-appointed accountability agent, should establish protocols to routinely identify, review and address the manner in which the agency handles past and future information related to United States persons.
The erosion of individual privacy rights within federal law enforcement agencies directly correlates with the rise of unchecked agency power, particularly in the realm of national security agencies such as the CIA and, post-9/11, the National Security Agency. Over the years, the situation has metastasized to the point where the CIA routinely conducts warrantless backdoor searches. These searches carry on without even attempting to follow the government-friendly statutory requirements laid out by Congress in the Federal Intelligence Surveillance Act.
As Sen. Wyden (D-Oregon) stated, the CIA has eschewed congressional intent, choosing to “secretly conduct” its own data collection program. What framework the CIA uses to collect, store and use this data remains unknown to the public.
Although reversing current privacy-evading norms may seem to be impossible, the path forward to reestablishing the importance of individual civil liberties is restoring foundational constitutional principles. Respect for the faithful implementation of these constitutional principles would naturally reinforce privacy rights because the Constitution is predicated on the preservation of personal security and liberty.
The principle most urgently in need of restoration is the separation of powers. This doctrine was designed by our nation’s founders to protect against the situation currently playing out within the CIA. This is because, when faithfully respected, the separation of powers prevents agencies from operating outside the boundaries of the duties assigned to the executive branch.
Utah has emerged as a national leader in privacy. Utah’s Supreme Court has rejected the doctrine of deference, a judicial practice in which a court takes a deferential stance toward administrative agency decisions. On the statutory side, Utah passed the Electronic Information Or Data Privacy Act which banned warrantless searches of digital devices. In 2021, Utah passed follow-up privacy legislation that created a position for a state privacy officer as well as a privacy commission designed to ensure state agencies are required to uphold individual privacy rights.
Utah is not alone. Courts in Wyoming, Delaware, Michigan, Mississippi, Kansas, Wisconsin and Arkansas have been clawing back unconstitutionally broad administrative power. On the data protection side of the problem, states such as Michigan, Maryland and Montana have joined Utah in working to provide citizens with assurance that their data is collected, stored and used consistent with constitutional protections.
Reversing the privacy violations that represent the norm at the federal level won’t happen overnight. States should continue to work toward restoring a proper understanding of the constitutional role of each branch of government to prevent the further erosion of individual privacy rights.