There’s a Data Privacy Day?

Although it’s filled with rich, square, old, white men, Congress still has to be considered a den of hipsters. That’s because they are always passing things ironically. Take today, for instance. This is Data Privacy Day. It’s a “holiday” that is celebrated in several European countries and since 2009 in the United States. In the first place it’s an ironic holiday because Congress really doesn’t like people to be excused from their obligations to their economic masters, so, as far as I know, no one actually gets the day off. And second, Congress has never shown the slightest interest in preserving the privacy of your data. Unless of course “data” is defined as intellectual property owned by a member of a powerful lobby or campaign contributor. Then they want to track you down and jail you (or worse) if their friends in commerce believe you have property not properly licensed to you.

As for the government, Congress has never seen much need to protect your data from our merciful overlords. We are, you may remember, at war against Terror. And Terror, if it means anything at all, must mean Everything There Is. You don’t have to read Kafka or Conrad to know that Existential Terror is everywhere. The Internet is ripe with Existential and all other Terrors and so Congress has been happily ready to allow our government employees the right to read your electronic musings and to mine it, catalogue it, put into algorithms that will categorize who you are and treat you in many other ways that George Orwell could never imagine government could do.

Take, for example, Congress’s great protection of your electronic communications, the Electronic Communications Privacy Act of 1986 (18 U.S.C. §§ 2510–2522), the Magna Carta of emails. Perhaps better the Magna Carta Electronica. That act requires government to obtain warrants to access your email under certain circumstances. We will skip the issue of whether the current crop of federal judges makes the slightest effort to require the government to show a need before issuing a warrant, and only mention that the government lawyers are quit clever in making up arguments why the law doesn’t apply. (One such argument was that the law doesn’t apply to electronic documents on third-party servers. This is like saying that your mail is not protected while in the hands of the Post Office.) But even if law enforcement officials acted entirely in good faith (that belief plus $2.50 plus a Metro Card will get you a ride on the New York subway), the Act only protects email up to 180 days. This is of course because Congress recognized that when he drafted the Fourth Amendment James Madison understood that a person couldn’t reasonably expect to have papers older than 6 months free from arbitrary government search and seizure. (To their credit both Yahoo and Google require the government to have a warrant or subpoena before turning over email older than 6 months. Not that this is much protection to you, but it is more than they are required to do.)

Google issued this week its 6-month Transparency Report and for the first time quantified just how anxious government is to get its hands on your gmail. According to Wired:

“In all, agencies across the United States demanded 8,438 times that Google fork over data on some 14,791 accounts for the six-month period ending December 2012. Probable-cause search warrants were issued in just 1,896 of the cases. Subpoenas, which require the government to assert that the data is relevant to an investigation, were issued 5,784 times. Google could not quantify the remaining 758.”

When you consider all other email providers, you have to wonder how law enforcement officials have time for anything else than reading your email.

Happy Data Privacy Day!

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