By Paul K. McMasters
Most Americans are always ready to tick off any number of reasons they value their privacy.
They want to avoid junk mail, junk faxes, junk calls and junk e-mail. They want to maintain physical and financial security. They want to keep medical and psychological information confidential. They want to keep nosy neighbors and Big Brother out of their business.
One of the most important reasons does not come quickly to mind, however, and that is how important personal privacy is to freedom of expression. Because the Constitution guarantees their right to engage fully and freely in such activities, Americans should feel comfortable speaking out about issues, communicating by phone or e-mail, associating with whomever they choose and going to the library or the Internet to learn more about whatever interests them.
But that comfort is compromised if they feel that the government is looking over their shoulders when they speak, correspond or associate. And increasingly, government law enforcement and intelligence agents are doing not only that, but also tucking away vast stores of personal information in impersonal government databases.
Privacy advocates and ordinary citizens are alarmed when they learn of secret searches for private information under the Patriot Act, or of warrantless eavesdropping on telephone and e-mail communications by the National Security Agency, or of the gathering of information on peaceful citizens by the Pentagon and the FBI.
That unease has grown more palpable with news that the federal government has demanded from four popular Internet search engines data on search requests and Web-site destinations. Microsoft, Yahoo and AOL all complied in some form with the government request. But the world's largest such firm, Google, refused.
On Jan. 18, the U.S. Justice Department filed papers in a California federal court seeking to force Google to comply with its subpoena. Specifically, the government lawyers want random samplings of 1 million Internet addresses and of 1 million search requests. No personally identifiable information would be included in the data.
The Justice Department wants this data as part of its effort to argue the constitutionality of the Child Online Protection Act in a trial, scheduled to begin this October in Philadelphia. COPA is a 1998 law that would require operators of Web sites providing sexually explicit, but legal, content to take complicated and costly steps to prevent minors from accessing the sites.
The Supreme Court in 2004 refused to lift a lower court's injunction against enforcement of the law and sent it back for trial. The high court said the government would have to establish a factual record that the voluntary use of filters was no match for the criminal sanctions in COPA in deterring minors' access to adult Web sites.
The government says it needs the information to determine which Web sites are accessed via search engines, to get some idea of how much "harmful to minors" content exists on such sites and to see how well filters block such material.
So what are the concerns?
It is not the data in this instance. It is the environment in which the federal government has launched this particular initiative. It is the fear that once the practice of seeking private information from private Internet operations is established, the temptation for government officials will be to go back again and again for more and more until no personal information online is ever safe from invasion.
Further, there are real concerns that this data, innocuous as it may be from a privacy perspective, nevertheless could help the government make the case that voluntary filtering software won't do in making the Internet safer for users; instead government-enforced criminal sanctions must be used.
The threat to freedom of expression is three-pronged: for individual Internet users, for the search-engine companies, and for the sites that offer targeted content.
In addition to their love of privacy, most Americans share another trait: They routinely censor themselves to some degree in their communications with others — in the name of civility as well as their own privacy. But there is a great difference in censoring ourselves for those reasons and censoring ourselves because we fear being caught up in a government investigation.
Too often, under the immutable scrutiny of government investigators, data don't lie. In government databases, such information is susceptible to a wide range of actions that expand the power to invade, deter, expose, harass, punish and chill.
The ready answer to such concerns, of course, is that if a person is not doing anything illegal, threatening or embarrassing, he or she shouldn't have anything to worry about. That ready answer is too easy.
In today's world, these concerns would not be so real if government officials did not insist that they have the right to arrest citizens without charges and imprison them without access to counsel or the judicial system.
These concerns would not be so pressing if abuses of similar powers had not occurred as recently as the 1960s and 1970s.
These concerns would not be so urgent if government officials did not make mistakes, or overreach or have at their disposal billions of bits and bytes of data purporting to represent the real lives of ordinary Americans guilty of nothing more sinister than believing that the First Amendment means what it says.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center in Arlington, Va.