Late last Friday, the National Counterintelligence and Security Center warned the American public against the dangers of spyware manufactured by one Israeli corporation. Spyware is unwanted software that can expose the entire contents of one’s mobile or laptop device to prying eyes.
This warning from the feds, issued with a straight face, is about as credible as American television executives warning about the dangers of watching too many British period dramas.
Here is the backstory.
Though America has used the services of spies since the Revolutionary War, until the modern era, spying was largely limited to wartime. That changed when America became a surveillance state in 1947 with the public establishment of the Central Intelligence Agency and the secret creation of its counterparts.
The CIA’s stated public task at its inception was to spy on the Soviet Union and its satellite countries so that American officials could prepare for any adverse actions by them. This was the time of the Red Scare, in which both Republicans and Democrats fostered the Orwellian belief that America needed a foreign adversary.
We had just defeated Germany in World War II, and an ally of ours in that war — an ally that suffered horrendous losses — suddenly became so strong it needed to be kept in check. The opening salvo in this absurd argument was fired by President Harry Truman in August 1945 when he used nuclear bombs to intentionally target civilians of an already defeated Japan. One of his targets was a Roman Catholic cathedral.
But his real target — so to speak — was his new friend, Joseph Stalin of the Soviet Union.
When Truman signed the National Security Act into law in 1947, he also had Stalin in mind. That statute, which established the CIA, expressly stated that it shall have no internal intelligence or law enforcement functions and that its collections of intelligence shall come from outside the United States.
These limiting clauses were integral to the statute creating the CIA, as members of Congress who crafted it feared the U.S. was creating the type of internal surveillance monster that we had just defeated in Germany.
Of course, no senior official in presidential administrations from Mr. Truman to President Biden has taken these limitations seriously. Last week, this column reminded readers that as recently as the Obama administration, the CIA boasted that it had the capability of receiving data from all computer chips in the homes of Americans.
The same column reminded state lawmakers that, contrary to the law that created it, the CIA is physically present in all 50 statehouses in America. What is it doing there?
Fast-forward to today, and we know that the CIA has rivals in the government for the acquisition of intelligence data. Today, the feds admit to funding and empowering 16 domestic intelligence agencies — spies next door. The most notorious of these is the National Security Agency, which, when it last reported, employs more than 60,000 persons, mostly civilians, with military leadership.
What do they do? They spy on Americans. We know this thanks to the personal courage of Edward Snowden and others who chose to honor their oaths to uphold the Constitution. NSA spying has produced so much data that the NSA recently built in Utah the second largest building in the U.S. — after the Pentagon — for use as a storage facility of the data it has collected, and it is running out of room.
What has it collected? Quite simply, everything it can get its hands on. These domestic spies — the CIA, the NSA, even the FBI — all have access to every keystroke and all data on every digital device everywhere in the United States, without a warrant. This is computer hacking, a federal crime, but the feds don’t prosecute the spies they have hired to spy on us.
It also represents an egregious violation of the Fourth Amendment, which guarantees the right to privacy of all persons. The operative language is “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.”
The law defines all searches and seizures conducted without a warrant as presumptively unreasonable and thus violative of not only this amendment but also the uniquely American value it was enacted to protect — the right to be left alone. Surely the computer chip in every desktop, mobile device, dishwasher and microwave is an “effect” protected by the Constitution.
The spies and, sadly, the presidents for whom they have worked don’t see it that way. They have claimed in federal courts and elsewhere that the Fourth Amendment does not pertain to spies because they are not law enforcement and because they work directly for the president, who, when he is operating as the commander in chief, is free to employ government assets as he wishes.
This argument has been used to justify the CIA’s violent killings of Americans and others in foreign lands using its drones and its agents dressed as military. It has justified the brutal torture of foreign nationals, even those whom the CIA deemed were being truthful during their interrogations. And, of course, it has justified ignoring the Constitution and the rights it protects and the values that underlie it.
It also belies the very purpose of the Constitution — to keep the government off the people’s backs. Of course, when the late Justice William O. Douglas coined that phrase, there were no computer chips, the CIA was thought to be law-abiding, and the NSA didn’t exist.
So, we can see how tongue-in-cheek the Biden administration was last Friday afternoon when it announced the need to be careful of commercial spyware. We can avoid commercial spyware, but how can we avoid a totalitarian government that spies on everyone?
According to the Declaration of Independence, we can do so by peacefully altering or abolishing it.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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