Privacy, Justice and Privacy
Terry H. Schwadron
Aug. 15, 2022
Inside the dust-up over the FBI executing a search warrant on Donald Trump’s Mar-a-Lago estate to recover classified documents was the kernel of protest over Privacy.
Even after the emergence of enough fact to show that their initial outrage seemed misplaced, Trump’s rabid partisan defenders were clear that the response by the government in pursuit of federal violations was out of proportion. They said it abridged Trump’s privacy rights — the same rights that don’t appear in the Constitution, according to the now reigning rightist Supreme Court majority.
Somehow, the notion here was that because this involved Donald Trump, a former president and would-be returning candidate, the government was supposed to ask nicely, wait, and abide by whatever this particular presumed lawbreaker wanted to have happen with the return of secret documents. After all, as president, Trump apparently just had to think of declassifying documents, and they magically were transformed.
Setting aside the peculiar circumstances of the FBI search, we are seeing plenty of the same in issues in the resistance to provide subpoenaed emails surrounding the events of Jan. 6, 2021, the Stop the Steal plotting, Trump’s taxes, phone calls or real estate valuations. They are all things Trump sees as private, as do the rings of acolytes around who are not former presidents, including Republican members of Congress.
The issue here focuses on the perceived partisan limits of privacy when it comes to partisanship — as well as our oddly discordant views about privacy in an age in which individuals post public pictures of what they eat, everything they do and even body parts.
Pushing Some Privacy Aside
The idea of Donald Trump, who wants the spotlight every day, whether for golfing or holding a Bible upside-down, is a bit strange. But privacy here means deflecting examination of his acts. And his MAGA chorus is falling into line to use privacy concerns as a defense against Justice showing up at his home or his auditor’s office or at testimony from women claiming sexual assaults.
These are the same Republican leaders who in state after state are pushing privacy aside to prosecute all kinds of crimes — and lately have been pushing for ways to invade the most private family communications where abortions are discussed, for example, or where there is email traffic about ordering abortion pills or discussions with agencies willing to transport women seeking abortions to other states.
They are the same Republicans who want to dictate whether same-sex teachers keep pictures of their spouses on a desk or on what books you and I can read in our community or school library.
Republicans have been among the loudest voices when a terrorist subject’s phone is seized towards forcing tech companies to crack the phone open. Republicans want the tech companies to open algorithms to explore why more crackpot Republicans are being banned from social media than crackpot Democrats.
And in cases with a distinct Democratic association, they have had no compunctions about wanting the phones and computers of Hunter Biden or Hillary Clinton made public.
But Representatives Jim Jordan, (R-Ohio), Scott Perry (R-Pa.) and others in Congress think their own communications arising in Jan. 6 conversations should be kept private.
By contrast, in March, a federal judge said authorities in Virginia had violated the constitution in using Google data to find people who were near a 2019 bank robbery because it identified lots of people who were innocent of the crime. As a society, we’re faced with the excesses of no-knock warrants, questions about the backgrounds of gun buyers and open disdain over what bathrooms transgender people choose to use.
Apparently, Americans want private data when we want it, and we want to protect privacy when it interferes with our political stances.
Abortion as Crime
As it happens, Facebook or Meta, its parent, faced political scrutiny this week after it was revealed the company had handed over private messages between a young woman and her mother to Nebraska authorities investigating the death and disposal of a fetus, The Washington Post explained.
Facebook received a search warrant from state authorities for communications between an 18-year-old and her mother that never mention abortion. The two were charged in June with concealing the April death of a person, among other charges. Authorities said they tried to improperly bury the body of a stillborn fetus. The mom also was charged with performing an abortion on a fetus older than 20 weeks, the legal limit in Nebraska.
Apparently to bolster the case, law enforcement officer asked a court to order Facebook to turn over private texts between the women about the pregnancy, discussing how to take pills to end the pregnancy, according to court records.
To obtain a warrant, the state request must cite evidence that a crime has been committed, and the narrow window of text exchanges.
The case pushes all the buttons about privacy being raised by the overturning of Roe v. Wade, and the expectations of the tech companies who otherwise are indicating in public statements that they do not want to cooperate with attempts to get at private abortion messaging.
Because a legal search warrant was involved, the company — are you listening Mr. Trump and Republicans? — would have to comply.
Curiously, abortion advocates and the characters in these political cases have been leaning towards similar solutions — moving to more secret, encrypted messaging platforms. It’s forcing Big Tech to rethink how they keep texts altogether and thinking anew about whether to scramble information about users’ data. Meanwhile, some states are considering legislation aimed at securing the rights to digital mail over obtaining abortion drugs, reports The Washington Post.
Despite talk in Congress, there is no comprehensive federal law protecting data privacy in the United States. Just last week, the Federal Trade Commission said it was exploring whether to create new rules to address privacy surrounding health and location data.
Maybe we should be thinking a bit more about consistency.