The idea of this post is not so presumptuous as it might seem. I had a note from John Podesta on White House e-stationery asking for my thoughts. In the interest of transparency, I thought I would share them with you.
Under the Rule of Law, the citizen surrenders to the state the exclusive right to the use of force in return for severe restrictions on all other powers of government and transparency and accountability. Since WWII, and particularly since 9/11, in the name of "national" and "homeland" security, the activities of government have become increasingly powerful, intrusive, and secret to the point that they violate this fundamental social contract. The governing classes appear to have a morbid fear of the citizens and see us as the "enemy," not to be trusted.
There must be no secret government. It is antithetical to any idea of self-government. Since databases are instruments of government, there must be no secret databases.
We must forgo any intelligence that we cannot collect through transparent and accountable means. While we may not have to know sources, methods, or results, there can be no secret programs. There must be protection of whistle-blowers; the government must avoid even the appearance of persecution. The government must assume full responsibility to keep its secrets; it may not make it a crime to report those secrets when it fails to keep them. There must be swift and certain punishment of public officials who mislead, lie to, or conceal from Congress and the people. (It is past time for Directors Alexander, Brennan, and Clapper to retire with their honor in tact.)
The government must admit that it "knows" and is accountable for all use, misuse, and abuse of any data that it collects or stores. The excuse that "we do not look at it" does not reassure; the mere collection and possession is intimidating. The citizen cannot be said to consent to a government of which he lives in perpetual fear.
The government must admit that it has no right to claim a power for itself just because Google has it. Google does not have guns, tanks, drones, nukes, or even dogs. Our contract with Google may be just as asymmetric as the one that we have with government but it is different.
The government must forgo the use of other governments or agencies to avoid the restrictions of the Fourth Amendment. A search is no less "unreasonable" because it is conducted by the United Kingdom, AT&T, Citibank, Cablevision, or a private investigator. Information from such sources must not be used as "cause," "probable" or otherwise, to initiate investigations or justify warrants.
If the government is going to exploit modern technology, it must admit to its power. It must admit that at some point a change in quantity represents a change in kind, that a search that is reasonable at one scale may be unreasonable when amplified by new technology.
The government must admit that it cannot use the departments of Defense, Homeland Security, or Justice to usurp the police powers reserved to the states and municipalities.
They asked me for my thoughts. I gave them my thoughts.