Does 'Eternal Vigilance' Mean The Government Is Always Watching?

“Eternal vigilance is the price of liberty.” Conservatives love this quotation, and I have to admit that I am pretty fond of it myself. Most people attribute the quote to Thomas Jefferson, but there is no evidence that he ever said it. No matter who said it first, though, the meaning is clear: liberty cannot be taken for granted and must be guarded carefully.

A news item caught my attention this week, because it involved both liberty and vigilance. The story concerns how far the government can go in watching the people to protect their liberty, without infringing on their liberty in the process.

The United States Senate recently took up a bill that was supposed to increase the privacy of your emails. However, in response to lobbying by certain law enforcement groups, a group of senators proposed amendments that would have exempted the government from the email privacy provisions.

The amendments went much further, however. Under the revised bill, the government would have the power to secretly review anyone’s email without a search warrant.  All the government would have to do is issue a subpoena to the internet service provider.

The subpoena could be issued without any showing of probable cause that a crime had been committed, and would not require a judge’s approval.  The account holder (i.e., you) would not have to be notified, because the subpoena would be directed to the service provider for its record of the emails, even though the emails were sent by you.

And yes, the records would include what was in the email, not just the date, sender and recipient.

While some might argue that law enforcement agencies need broad powers to investigate terrorism and other serious crimes, the Senate bill went much further in granting the government warrantless access to your emails. The bill would have granted subpoena powers to over twenty federal agencies, including:

• The National Labor Relations Board
• The Occupational Health and Safety Administration
• The Securities and Exchange Commission
• The Federal Communications Commission
• The Federal Trade Commission
• The Mine Enforcement Health and Safety Review Commission
• The Federal Maritime Commission
• The Postal Regulatory Commission

In addition, the proposed bill would have allowed these agencies to subpoena emails, not just from public services like Gmail, but also from the private internal email networks of institutions such as hospitals and universities.

When these proposed changes to the email privacy bill became public, the response was immediate and overwhelmingly negative. The criticism came not only from liberal groups like the ACLU, but also came from conservative groups, including FreedomWorks, which launched an on-line petition drive entitled “Tell Congress-Get Out of My Email.” The drive resulted in over 2,300 emails to Congress in the first 24 hours.

In response, the sponsor of the original bill, Sen. Patrick Leahy, said he would withdraw his support for the bill if the government access amendments were included.  Senator Leahy also indicated that the amendments would be allowed to die quietly in the Senate Judiciary Committee, which he chairs.

This episode brings to mind another of my favorite quotes, this one from the Roman poet Juvenal: “Who will watch the watchmen?” When the government oversteps its bounds, it is up to the people to be on watch.  And eternal vigilance is .. . . well, you know.

Have a question or a suggestion for a topic?  Email dspirgen@SpirgenLawFirm.com.

Patch posts are general discussions and should not be used as advice on any specific legal matter.  If you need legal advice on a particular situation, please consult an attorney.