In the aftermath of the Sept. 11, 2001, attacks, Americans called on government to take all necessary measures to bolster national security. Citizens shocked by the death of nearly 3,000 people accepted the growth of an intrusive and pervasive surveillance state because it provided an assurance of safety.
Now that time and distance have helped to heal raw wounds, and we are less apt to see threats around every corner, a thorough reassessment of the nation's security apparatus is in order. We need to take a long look at the methods and programs in place, and to consider the implications of having so much raw data in the hands of government.
While some of the major policy choices regarding the future of domestic surveillance must be made in Washington, area residents should encourage such introspection closer to home. Decisions made in Richmond and in local city halls about collecting and sharing personal information demand scrutiny as well.
The U.S. Constitution does not contain a right to privacy but its provisions have been interpreted by federal courts to imply one. In particular, the Fourth Amendment guards against unreasonable searches and seizures and mandates the use of warrants to gather criminal information.
There is no comparable language in the Virginia Constitution, an absence that worries privacy advocates and civil libertarians alike. While federal supremacy means the Fourth Amendment's protections apply to commonwealth residents, it would be better if the state clearly demarked the limits of law enforcement and specified citizens' right to privacy.
That may seem like a small matter, but it has massive implications here.
A few months ago, Hampton Roads residents were surprised to learn that several local governments participated in a program that allowed law enforcement to gather, compile and share telephone data.
The Hampton Roads Telephone Analysis Sharing Network was established in early 2013 without public fanfare. The Newport News City Council voted to participate in the program by including it in a consent agenda, typically reserved for routine, non-controversial matters. Hampton's elected officials did not even take a vote; the city manager and acting police chief authorized participation without City Council consent.
While law enforcement says the program is only collecting information from criminal suspects, there is no way to independently verify that assertion. In fact, there is no indication that the data is regularly purged or that data collected is limited by the parameters of a particular warrant.
We are sensitive to the needs of law enforcement and aware that the program could help make this a safer community. But we also worry that the program is ripe for abuse, and that casting a wide net means that the information of law-abiding citizens will be snared as well.
Unfortunately, programs like this are increasingly the rule rather than the exception. Government collects reams of information on its citizens, some voluntarily provided through social media or other means, and some using advanced gathering techniques made easier through technology.
Very few of these data-collection programs are subject to public oversight. Basically, government is asking citizens to trust that these invasive initiatives, compiling vast amounts of sensitive data, will not be abused.
That is not good enough for us. Nor should it be for you.
This year, the General Assembly will consider adoption of what has been termed a "21st Century Fourth Amendment" for Virginia. It will clearly spell out limits on government to prevent warrantless data collection and other intrusions on privacy. And, importantly, it will rectify an absence of law covering digital information to ensure that personal data remains confidential.
A broad coalition is working to advance this legislation and we share its hope for success. Virginia should be progressive in its efforts to protect privacy, and that should begin by setting detailed limits like those in a state-centric Fourth Amendment.