‘W e have met the enemy’

The framers of our Constitution believed in freedom and were intent on limiting the power of government. I have come across commentary that calls this a “quaint notion.” There are some that are uncomfortable with this idea because it implies an adversarial relationship between us and government. On the flip side of the argument, I remember a teacher I had that told me “the government is us.” Now that is a quaint idea, especially in light of recent legislation.
In my last column I commented on legislation before West Virginia lawmakers, House Bill 2513 entitled “improving enforcement of drugged driving offenses.” It authorizes mandatory blood tests for drivers suspected of “drugged driving.” Refusal means you forfeit your license. That column is still available on the Spirit of Jefferson’s website. As it happens, on the day after I wrote it the Supreme Court of the United States issued a ruling on Missouri v. McNeely. That case involved a police officer in Cape Girardeau County, Mo., who forced a suspected drunk driver to submit to a blood test without first obtaining a warrant. In an 8-1 decision, the justices ruled that a warrant was required.
The West Virginia legislation authorizes the state to draw and test your blood without a warrant. As of this writing, the governor has not yet signed the bill into law. In light of the Supreme Court decision, it will be interesting to see whether or not he will sign it, since the legislation was his idea. How ironic it would be if he were to veto his own bill. I would respectfully suggest that he and every member of the legislature that voted for HB 2513 read the Fourth Amendment of the Constitution, which guards against unreasonable searches and seizures. They should also read the Missouri v. McNeely Supreme Court decision.
The Fourth Amendment is under attack on the federal level as well. The transgression du jour is called the Cyber Intelligence Sharing and Protection Act or CISPA. It has already passed the House of Representatives and is heading for the Senate.
According to an article in PC Magazine (by the way, “PC” in this case stands for Personal Computer, not “Politically Correct”), “CISPA would allow for voluntary information sharing between private companies and the government in the event of a cyber attack. If the government detects a cyber attack that might take down Facebook or Google, for example, they could notify those companies. At the same time, Facebook or Google could inform the feds if they notice unusual activity on their networks that might suggest a cyber attack.”
Sounds reasonable, right? Not according to the Electronic Frontier Foundation. Quoted in the article they state that “CISPA is written broadly enough to permit your communications service providers to share your emails and text messages with the government, or your cloud storage company could share your stored files.” They go on to say that it “essentially means CISPA would override the relevant provisions in all other laws—including privacy laws.” In other words, it would allow companies to easily hand over a user’s private information to the government.
CISPA provides legal immunity to a company for actions done to or with your private information, as long as the company acts in “good faith.” Good luck proving the negative of that. Further, even if the company violates your privacy beyond what CISPA would permit, the government does not have to notify the user whose information was improperly handed over — the government only notifies the company. It amounts to a warrantless search of your email and electronic records without your knowledge. All three members of the House of Representatives from West Virginia voted for CISPA.
What is particularly troubling about both of these bills is that they sound like they are aimed at helping to promote safety. However, upon closer examination, both infringe upon our Fourth Amendment rights while any potential benefit requires us to trust the government to do the right thing.
In my last column I referred to a recent Pew Research Center survey that revealed that “a whopping 73 percent” of Americans do not trust the federal government “to do the right thing always or most of the time.” If the government were “us” that would not be the case. It reminds me of the quote from the late Walt Kelly in his iconic comic strip Pogo. “We have met the enemy and he is us.”

—Elliot Simon writes from Harpers Ferry

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