Reports That ‘Privacy Is Dead’ Have Been Greatly Exaggerated

A Washington, D.C., judge strikes the balance in an investigation of riots on Inauguration Day.

 
 

PHOTO: ISTOCK/GETTY IMAGES
 

News broke last month that the Justice Department had demanded DreamHost, a Los Angeles tech company, turn over information on more than a million visitors to a websitethat coordinated anti-Trump protests—some of which turned violent. Although the feds had a search warrant signed by a District of Columbia Superior Court judge, DreamHost refused to comply, arguing that the order raised First Amendment questions and could have a chilling effect on political expression.

Immediately the Justice Department felt pressure from its right and left flanks. Fox News libertarian Andrew Napolitano noted there are “very serious constitutional problems” with the order. His sentiments were startlingly similar to those of anti-Trump outlets like CNN and the Huffington Post.

Two days before DreamHost’s challenge to the warrant was to be heard in court, the Justice Department announced it would seek a significantly scaled-back warrant. According to the government’s lawyers, the department initially was unaware of “the extent of visitor data” it was requesting, and had “no interest in records relating to the 1.3 million IP addresses.” Chief Judge Robert E. Morin approved the new warrant on Aug. 24, but also added extra privacy “protections.”

The government must now submit an amended report on what data it’s collecting and explain how it will protect the identities of “innocent visitors” to the website. All IP addresses will be excluded, and any data deemed irrelevant to the case will be sealed by the court and inaccessible to any other government agency. Some privacy advocates are still grumbling, but DreamHost published a blog post after the hearing, in which it praised the decision as a “clear victory” for user rights.

The First Amendment gets a small win, and privacy maintains a pulse in the digital age. This revised order strikes a much-improved balance between privacy rights and the interests of the Justice Department. Episodes like these can be useful reminders that the relationship between privacy and free speech has a rich heritage in America’s political history.

In 1956 Alabama’s attorney general pressed a state court judge to make public all of the National Association for the Advancement of Colored People’s membership lists and employee rosters—complete with home addresses. The NAACP appealed to the U.S. Supreme Court. In NAACP v. Alabama (1958), Justice John Marshall Harlan II proclaimed a unanimous court had “recognized the vital relationship between the freedom to associate and privacy in one’s associations.”

The ruling’s core tenets were upheld two years later in Bates v. City of Little Rock, when Arkansas tried the same membership-list tactic. The Alabama opinion continued to be cited in the 1960s, when the high court officially recognized a constitutional right to privacy for the first time in American history.

As for the DreamHost controversy: The tens of thousands of protesters who took to the streets on Inauguration Day are not entitled to absolute privacy. Any argument to that end would be ludicrous. More than 200 were arrested on charges of rioting, and the Justice Department has the authority to gather evidence in the interest of pursuing their convictions in a court of law. Those who choose to express their political views in a public setting forfeit certain reasonable expectations of anonymity—especially if they are violent.

But that wasn’t the issue here. Americans express their political beliefs in a variety of ways. Some make financial contributions to organizations they support. Some attend private gatherings. Some are still honing their opinions and choose to stay informed by visiting a website or two. The Justice Department’s original demand obliterated those distinctions. It demonstrated an unnerving ignorance of the fundamental relationship between privacy and free expression.

Judge Morin has signaled that he intends to play an active role in supervising how the evidence is used, and the Justice Department investigation will no doubt move slowly. DreamHost has turned over the requested data, but investigators can’t begin mining them until the company decides if it wants to file an appeal.

Alan Westin, perhaps the most influential privacy scholar of the 20th century, admitted in a 2003 interview that while he appreciates the role of privacy advocates who push for a “total privacy solution,” he would “never want to live under their regimes.” The goal, for reasonable minds at least, is balance. The competing values of privacy and law enforcement, in the end, “need to be brought into some kind of harmony.” That all parties involved in the DreamHost case are debating that balance is a step in the right direction.

Faced with the latest news about a political hacking scandal or a corporate data breach, many Americans have developed a troubling tendency to shrug their shoulders and remark knowingly that “privacy is dead.” The DreamHost fight shows it is still alive, and the fight for it can foster a search for reasonable solutions. It also provides a rare opportunity, in these polarizing times, for left and right to come together.

Mr. Cappello, a visiting professor of history at CUNY Queens College, is a lecturer for Thinkolio, a public-lecture series in New York.

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