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Can personal privacy be restored?

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Can a conservative fix what’s wrong? Those unspoken questions informed Wisconsin Congressman James Sensenbrenner’s presentation “Restoring Privacy: A Bipartisan Approach,” at the University of Minnesota’s Humphrey School of Public Affairs on April 1, 2014. The answer to both could be affirmative, assuming bipartisanship is practicable when America’s representatives remain so politically biased.

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Heir to the Kimberly-Clark fortune and representative since 1979 from what political analyst Michael Barone has called “usually the most Republican district in the state,” Sensenbrenner takes a strict constructionist view of the federal government. None of its three branches (judicial, executive, and congressional) should overstep the roles defined by the U.S. Constitution. Thus, he objects to the National Security Agency collecting vast amounts of electronic data on U.S. citizens because such collections exceed the mandate given it by the U.S. Patriot Act. If Congress had anticipated the expansion of NSA’s intelligence-gathering activities and the Foreign Intelligence Surveillance Court (FISC or FISA)’s rubber-stamping those activities, the bill “never would have been passed in 2001.”

Regarding NSA’s violations of personal privacy, Sensenbrenner declared “We are where we’re at because all three branches failed to do their oversight.” Because the “Fourth and Fourteenth Amendments [to the Constitution] are being trampled upon,” time is running short for the President and Congress to prevent a Constitutional crisis that “could be worse than Watergate.”

His solution to this potential apocalypse: The USA Freedom Act. His proposal would:

  1. Amend the 2001 NSA statute
  2. Prohibit bulk collections of electronic records
  3. Open up the FISC such that:
  • Changes in Court policy would be public and,
  • An advocate would be permanently established to appeal the Court’s decisions

President Obama and the Democrats’ counter-proposals differ from the Sensenbrenner proposal primarily by making the advocate position a case-by-case appointment.

Both proposals, however, ignore recent technological and institutional developments. Communications technology has “expanded exponentially” during the past 30 years, but the knowledge base of the House judiciary subcommittee overseeing crime, terrorism and Homeland Security has not. “Some of us are better informed than others,” Sensenbrenner admitted. Likewise, a permanent FISA public advocate simply would create another toothless bureaucratic safeguard by allowing a president’s political opponents to block his or her nominees for the position.

Sensenbrenner’s patrician approach overlooks the ideological infighting that cripples Washington, D.C. The expansion of power by all three branches of government is ongoing and outruns all efforts to curb it. If the NSA’s violation of personal privacy “goes to the core of American values” as Sensenbrenner claims, a bill that tweaks the current system is not enough. A fundamental overhaul of America’s political system may be what’s called for.

What do you think?

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