Editorial: An Authentic Threat to Liberty

While the Second Amendment crowd is busily stockpiling weapons and vainly scanning the horizon for the arrival of the black helicopters, an actual and perhaps unprecedented threat to individual liberty and personal privacy is quietly unfolding in the federal government.

As The Wall Street Journal reported earlier this month, the Justice Department in March approved new rules that allow the National Counterterrorism Center to copy and analyze almost any government database, including those containing personal information. It can store information on U.S. citizens for up to five years even if there is no reason to suspect them of terrorism or other criminal behavior.

What sort of databases might be subject to the new rules? Any that the agency says are “reasonably believed” to contain terrorism information. According to the Journal, they might potentially include everything from flight records to the names of Americans hosting foreign exchange students to financial disclosure information submitted by people applying for federally backed mortgages to health records of those seeking treatment at Veterans Affairs hospitals. Perhaps the most sensitive database is the Advanced Passenger Information System maintained by the Department of Homeland Security, which contains the name, sex, date of birth and travel information for every airline passenger who enters the United States. While Homeland Security was supposed to keep that information for only 12 months, the Counterterrorism Center can copy and retain it for five years.

That this was a sharp departure from previous practice can be inferred from the fact that Mary Ellen Callahan, then chief privacy officer for the Department of Homeland Security, opposed the change. According to the Journal, she told participants at a key meeting in March that, “This is a sea change in the way that the government interacts with the general public.”

That’s putting it mildly. The government may now troll through vast amounts of data compiled for other purposes without any reason to believe that a specific person is involved in terrorism or criminal behavior. As far as we can tell, the purpose is to analyze this information with an eye to predicting who might commit a crime in the future by detecting suspicious patterns of behavior.

This strikes us as Orwellian, although apparently legal. While the Fourth Amendment protects Americans from unreasonable searches and seizures of their persons, houses, papers and effects, records compiled by the government about citizens in the course of its ordinary functions are another matter. The Federal Privacy Act, passed in 1974, supposedly prohibits government agencies from sharing records with each other for purposes that are not compatible with the purpose for which they were originally created, but the Journal notes that there’s a simple opt-out from many of the requirements if the agency merely places a notice in the Federal Register.

Information is power and ever more so in the age of technology, which permits the large-scale collection of data with an ease that was unimaginable a generation ago. Combined with the threat of terrorism, this ability creates an almost irresistible urge for government to pry. But asserting the unchecked power to snoop into private life is a hallmark of totalitarian regimes, not democratic ones. Congress should act to circumscribe this power sooner rather than later.