This week FBI Director Christopher Wray attended the World Economic Forum in Davos, Switzerland. This decision, as well as his activities during the summit, are fertile ground for broad inquiry and criticism. Why is the head of a domestic law enforcement agency attending a gathering of global elites seeking a world without privacy? Did Wray use a taxpayer-funded jet to travel? If not, was the Director lying during a November 2022 Senate Homeland Security Committee hearing when he responded to a round of questions from Senator Josh Hawley, “I am required, not just permitted, required even for personal travel to use the FBI plane?” Why did Wray hold a private meeting with a group of global bank and exchange chiefs instead of relaying his cybersecurity and resilience expertise with the public?
This is just a smattering of questions I will leave for others to address. As an experienced investigator and civil libertarian, I found Wray’s comments during a panel addressing national security and cybersecurity especially alarming.
“The sophistication of the private sector is improving, and particularly important, the level of collaboration between the private sector and the government. Especially the FBI has, I think, made significant strides.”
Points for honesty. The recent Twitter Files exposed a plethora of symbiotic relationships between the FBI and big tech. The alliances are a convenient hack for America’s premier federal law enforcement agency to infringe and criminally investigate first amendment protected activity. The two entities play a convenient game of accountability hot potato. The FBI claims it merely establishes relationships and shares information with big tech without involving itself in the inner workings or business decisions of private industry. For its part, big tech simply abides by government guidance and recommendations. In the end, big tech shares private citizens’ information with the FBI in contravention of constitutional due process.
This game is a clear threat to free expression and privacy rights enshrined in the First and Fourth Amendments. However, I want to concentrate on another section of the Bill of Rights. The Third Amendment states, “No Soldier shall, in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” I know. I know. This is old-timey language from a dusty document. After all, none of us are hosting Red Coats on inflatable mattresses in our living rooms. Nonetheless, a fair evaluation of the merits and spirit of this often-overlooked constitutional protection is vital in the context of Wray’s statements about “collaboration” between the FBI and big tech.
The days of Congressional declarations of war ended after World War II, but this has not stopped presidents from deploying the American military to war zones around the globe. On the home front, presidents implemented executive policy to wage wars against poverty, crime, drugs, terrorism, and global warming. Our country also witnessed a seemingly endless stream of public health emergency pronouncements stemming from natural disasters, opioid abuse, illegal immigration, and communicable diseases. The benevolent intent behind each declaration is debatable. But each pronouncement indisputably empowered our executive branch with enhanced administrative powers comparable to those imparted to a president during war.
Now consider everyday technologies and average Americans’ habits. A recent survey found that over 120 million Americans use voice assistant software such as Alexa and Siri. Furthermore, a 2021 study by Pew Research revealed that almost three-quarters of Americans use some type of social media.
Having established the aforementioned groundwork, we can examine Wray’s comments and ask some poignant questions.
Overlooking Congress’ financing of hostilities between Ukraine and Russia and President Biden’s extension of the COVID-19 emergency, America is arguably in a time of peace. An Alexa speaker, such as an Echo, is always actively recording. Amazon also informed the federal government that it indefinitely maintains Alexa recordings. While users undoubtedly clicked “agree” on the Alexa user agreement, does this obligatory act constitute actual informed consent? Moreover, does the user agreement include a clause granting Amazon approval to share recordings of private conversations with the FBI without a search warrant? Likely not. Suppose the contents of private chats between household members end up in the hands of the FBI without due process. Does it matter if the intercepting party is a small speaker or a British soldier sitting at the kitchen counter? At least the citizen homeowner does not have to feed Alexa breakfast while it violates his privacy rights.
Now consider the matter through the lens of war. Although Congress has made no declarations, its delegation of authority and funding of an expansive administrative state since the advent of the COVID-19 pandemic could be considered war-time actions. Recalling history, one of the motivations behind the British quartering of soldiers in American households during the Revolutionary War was to gain intelligence. What is the difference between a human being eavesdropping on private conversations and an employee for Facebook or Twitter monitoring private messages? As we learned, the content of these messages commonly finds itself in the hands of the FBI via confidential informants working at the social media giant. It is safe to assume most Americans recharge their cell phones on bedside tables overnight. If the contents of a private Facebook conversation carried out via a cell phone app end up in the hands of the FBI without due process, is that any different than an enemy soldier listening to a private chat between husband and wife through the adjoining wall of a guestroom?
In the 1979 horror film “When a Stranger Calls,” a babysitter answers a series of strange and threatening phone calls. During a famous scene, the police inform the protagonist that the phone calls are coming from inside the house. We should consider this pop culture reference in the context of the blossoming relationship between the FBI and big tech. Director Wray’s captive audience applauded greater unification of government and private enterprise. They hope a coalescence of the two advances society towards global governance. If Americans wish to preserve the liberties our forefathers fought the Revolutionary War to establish and drafted the Constitution to preserve, we would be wise to consider if our greatest threats are coming from inside the house.
