The Bill of Rights a casualty of war?
Geoff Metcalf interviews personal-privacy guru Michael Hyatt

Editor's note: One of the key public-policy issues being discussed in the wake of the terrorist attacks on the United States is whether Americans are willing to give up personal liberties and privacy to bolster security. Michael Hyatt, author of "Invasion of Privacy: How To Protect Yourself in the Digital Age," was convinced before Sept. 11 that Americans had given up too much of their freedom and personal information, both to the government and to private businesses and organizations. Hyatt has strong opinions on the erosion of privacy and gives practical advice on how people can protect their identities in a world of ever-increasing snooping technology. Geoff Metcalf recently interviewed Hyatt about his book and the current debate pitting freedom against security.

By Geoff Metcalf
Q: In our effort to reach out to our government with pleas of "take care of us ... take care of us ... take care of us," how great is the danger that potentially they may actually do some bad stuff?

A: I think it's a very dangerous time. I think in large part, because of the dumbing down of the general public, we are ignorant of the Constitution. Most people have not read it. They don't know the Fourth Amendment from the Fourth Commandment, and as a result, they are readily willing to give up what they don't know and don't appreciate.

Q: I was astonished recently by a poll that was conducted in New York in which one-third of New Yorkers polled thought the concept of internment camps was cool.

A: Yeah, that is just amazing, isn't it? There was a piece that Washington Post did, and they found that somewhere between 65 and 95 percent of Americans were willing to give up their civil liberties for security.

Q: Half of that is because they don't know what those civil liberties are that they enjoy.

A: No they don't, and as I said in a recent column in, our forefathers didn't die to give us safety; they died to give us liberty. And those are two very different things.

Q: And it's not "outcome based" either.

A: That's right! If we're not careful, we are in danger of losing both.

Q: During the last administration, I was constantly ranking on Louis Freeh because the feeling was -- and there was a reason for it -- that he was reaching or overreaching to get as much control as he could. Now it seems as if Ashcroft is going to achieve what Louis Freeh was fortunately denied.

A: It's amazing, isn't it? For most of my entire life, I have been a conservative Republican, and I finally figured out a couple of years ago that there's not really that much difference when it comes down to it.

Q: What took you so long?

A: I don't know. I'm a slow learner. One of my friends said it's basically two parties going to the same destination. One is going 60 miles per hour and the other is going 80 miles per hour, but they're both headed to the same place. And on this issue, it is a good case in point. Supposedly, we have Republicans who are for the restraint of government, for limited government, and yet we are probably going to see during this administration the largest expansion of a federal government since probably Lyndon Johnson.

Q: What, if anything, can we do to stop it?

A: I don't know. And it's kind of odd that we find ourselves in bed with some very strange people -- like the ACLU and people that normally I don't have a lot in common with. And yet I find a lot of liberal Democrats that I disagree with on a lot of issues seem to be some of the few voices on the Hill calling for restraint, calling for more public debate.

Q: I've been getting in trouble for over a decade because I've always based my programs on "It's not a question of who is right or wrong but what is right or wrong." NAFTA is usually the best example I use where a strange coalition of folks get together and agree who normally you wouldn't expect to see drinking beer together.

A: Yeah. It's really strange. It makes you stop and ask, what's wrong with this picture? But in this case, I don't know of anything we can do short of simply taking to the Internet, taking to whatever media we have access to, and, first of all, helping people understand the Constitution. Secondly, understand the enormous cost that we have paid as a country to defend that Constitution and to preserve it. Even today, so many of the rights have been eroded so that we have just a skeleton of what the founders gave us.

Q: True, but you know the argument they'll come at you with. "Hey, if you're not doing anything illegal, Michael, what do you care if the government is poking around and looking at your stuff?"

A: Yeah, and this goes back to the very first comment that you made, Geoff. That is the whole issue of "unintended consequences." Take, for example, the national ID card. There had been some push. Then Bush kind of throttled it back and now says he's not interested in having a national ID card. Frankly, I don't think we've seen the end of that. I think this is too big a temptation for the big-government types. They are going to want to push for that. But what happens when we get an administration that is hostile to some of the things that you and I hold dear? Or they want to profile people and begin internment camps? Who knows what they may conjure up? But once you start down this path, then there is no end to it. It can be misused and abused.

Q: Right now, everybody is ticked off, and we are united in our anger and our desire for revenge. Even the Democrats think, or at least say, the president is doing a wonderful job. He's the slickest thing since pre-slice bread. But what if, through this administration, we abandon or abrogate certain freedoms and liberties, and it ends up in the hands of an administration like the last one, salivating over the opportunity to redefine abuse of power? Joseph Farah got audited by the IRS, not for any potential or perceived financial impropriety, but just for what we were writing.

A: Right. And that is repeated all across the country in churches where pastors and preachers are told what to preach by the IRS, by the federal government. That's one of the unintended consequences of things like the income tax.

Q: Everybody knows the Patrick Henry quote, "Give me liberty or give me death."

A: Right.

Q: What most people don't know is what prompted him to deliver that speech. The day before, he had been going through some town and saw some guy being flogged. He asked someone why the man was being flogged. The reason he was being flogged was that he was a minister who had refused to take a license to preach.

A: Wow! And today, the notion of a church being unregistered or unlicensed sounds so fringe and so "out there," and yet what else is that except submitting to the rule of the state in areas of religion? Which ought to be unregulated and ought to be free.

Q: You make mention of Echelon, Carnivore and something not a lot of people know about -- FINCEN. Please explain to our readers what that is and why it is so dangerous.

A: If you've seen the movie "Enemy of the State," there was a real demonstration of FINCEN. Essentially, it is one of the three surveillance systems operated by the Treasury Department. It monitors virtually every digital financial transaction in real time, because 98.8 percent of all financial transactions in the world are digital. This also explains why even the current administration has had such a war on cash transactions, because they are much more difficult to track. This is what FINCEN is: It tracks and monitors the way we spend our money. And it enlists in the program private citizens -- bank employees -- to do the spying and the monitoring on our private citizens.

Q: Which is really just "Know Your Customer" in reality.

A: Yeah, in reality! Supposedly, we defeated that. But in reality, we've got these things called SARs -- the suspicious transaction reports -- that get submitted by bank employees when there is something that is "abnormal," like you deposit more money in your account than they think you should.

Q: Britain is getting pressure also to enact some kind of national ID card.

A: Right.

Q: The way Tony Blair equivocated was by saying it's going to be a "voluntary" card. Sure, it's going to be voluntary, but you are going to need the card. You don't have to get a card, but without a card, you can't buy gasoline; you can't fly. Virtually anything you may need to subsist will require having a national ID card.

A: Yeah, it's going to be about as "voluntary" as the Social Security card, which, of course, is voluntary because you have to apply for it, right? But you can't do anything without it.

Q: Let me steal a line from your book. Right now, you are exposed and vulnerable. Why?

A: You're exposed because there are really at least three different groups that are trying to get a fix on you for various reasons. First of all, we have marketers out there. People who want to get your personal data, your buying habits and preferences, because they want to sell you more stuff, and they want to do it more efficiently.

Q: Data mining?

A: Data mining. Frankly, a lot of people are happy to comply with that because they get stuff that they are really interested in. That's the lowest level, but of course the sad part of that is we don't like those interruptions at the dinner table from telephone solicitors trying to sell us stuff we don't want or need. The second group, which is a little more threatening, includes attorneys, criminals, hackers, identity thieves -- people that want to get a hold of our personal data to exploit us in some way or steal our stuff. The third group, and the one that is surprising for a lot of people, is the government itself. The government maintains and operates the most massive surveillance system on the planet. They know virtually everything about us. We have talked about Echelon and Carnivore and FINCEN, and there are other systems as well, but even the stuff that Ashcroft is pushing now before the Senate is stuff they've already got. It's just that the agency that he oversees, the FBI, doesn't have access to it in quite the same way that the NSA does. And he wants to be able to use it against American citizens rather than just limiting it supposedly to foreigners.

Q: PGP, Pretty Good Privacy, won their case in court. But the question now is, since there is a greater threat, a more significant threat to our national security and our homeland, is PGP going to roll over and comply?

A: I think they may roll over. They may try to provide a back door for government to go in and be able to decipher these encrypted messages that are traveling over the Internet -- that is such a bunch of baloney. All it's going to do is penalize honest citizens who are trying to protect their e-mails from their competitors when they go through the system.

Q: What about Microsoft?

A: Microsoft is another one. Talk about data mining. The system they're trying to set up with XP and their dot-net system -- if they get their way, they're going to be storing all of our personal data on their servers, and then again, it's the whole "unintended consequences" thing we talked about earlier. The question then becomes, "Who has access to that?" I've reported on my website how we've got state and federal agencies who got access to a lot of this personal data -- employees that have been guilty of identity theft, harassing individual citizens and making use of this information in ways that are dark and, frankly, malignant.

Q: It's a stalker's dream.

A: It is a stalker's dream. One of the things I've done with people that is a real eye-opener is to go to a website like This is a big AT&T site that is basically a way for you to go and look up phone numbers that you don't have access to. It's like a giant white pages. The problem is on that website, they have a reverse look-up feature. So you call information and get somebody's phone number, assuming that it is not unlisted -- and only 20 percent of Americans have an unlisted phone number; the other 80 percent are happy to have their number listed. You get their phone number and you enter it in and the reverse look-up feature of, and guess what happens? You get their residential address. And if you click on one link, you'll get a map with door-to-door driving directions from any point in the U.S. to their home. Talk about a stalker's dream come true -- that's it.

Q: The frustration that is building is more than just visceral. This bad stuff is going to happen. How can people protect themselves from it?

A: That's the good news. They can protect themselves. Sometimes people get a little scared when they hear this kind of discussion. They say, "Gosh, I feel the toothpaste is out of the tube. All my personal information is littered digitally across the landscape. How can I get it back?" Well, you can't get it back. But what you can begin to do is to intelligently start to repopulate those databases with information that you want out there. It is kind of in essence a disinformation campaign. One of the things I recommend in my book is that the first thing you have to do is realize the source of the problem. The No. 1 enemy of privacy is not criminals, hackers, identity thieves. It's not even the federal government who, as I said before, operates the most massive surveillance system on the planet. The No. 1 enemy of privacy is your own big mouth. We volunteer so much information away.

Q: Give me an example.

A: A few weeks ago, I went to a dentist I had never been to before. As I came into the office, they had me fill out the new-patient application form. One of the fields they wanted me to fill out was for a Social Security number. Now, this was going to be a cash transaction. I wasn't presenting an insurance card. I was just getting my teeth cleaned, and I was going to pay cash. So I just wrote "N.A." for not applicable in the Social Security field. I turned it back in to the nurse with a smile on my face. She said, "Fine, Mr. Hyatt. The doctor will be with you in a few minutes." But how many people fill that information out and fork over their Social Security number, which is truly the keys to the kingdom, to somebody they have never met and don't know, and when they have no idea where this data is going to go after they leave? It just points out our No. 1 enemy is our own big mouth. And that's where we have got to stop the leakage.

Q: It's the dumbing down of America and incrementalism. I remember back during the last census, they came to my door three times. I gave the same response every time. But the first guy, when I told him, "No. I told you how many people live here, and that's all I'm required to do. Thanks for your time." It was like I had called his mother an obscene name or something. He just couldn't understand why I wasn't willing to fill out all that detailed survey information, because he was "from the government."

A: They steal the high ground on this and try to convince you that if you challenge this stuff on the right to privacy, the Bill of Rights, if you bring up any of that, they claim you are unpatriotic. I mean, "Don't you want to help your country?" Then, of course, the other appeal on the census was: "Don't you want our county to get its fair share of the federal funds?" Well, actually I don't.

Q: Allegedly, all this bad stuff is being done to protect us. But protect us from what? What is the country if it isn't the Constitution and the Bill of Rights? And if we start chipping away at that, we are handing victory over to the bad guys.

A: I recently reread the Fourth Amendment: "The right of the people to be secure in their persons, houses and personal effects against unreasonable searches and seizures ..." And the question you've got to ask is ...

Q: What's "unreasonable"?

A: Even before that, who are they concerned about? Who are we to be secure from? Who are we to be protected against? It's the GOVERNMENT. The forefathers saw something that we too often don't see today in all our patriotic rhetoric. And that is government is a dangerous thing. It's not something to be trusted. It is something to be restrained. That was the entire purpose of the Constitution. When we just act like everything is of goodwill and everything they do is legitimate and if you resist it you are unpatriotic, that is not the spirit of the founding fathers at all.

Q: I feel like I'm listening to an echo. I'm constantly reminding people that the Constitution and the Bill of Rights don't give us anything. It was specifically designed to limit and control government.

A: Absolutely.

Q: Those guys had just been through a bad experience with a tyrant.

A: That's exactly right. If there was ever anybody who didn't trust government, it was the founders. And you know they were good students of history because they understood the tendency of governments. All governments, regardless of the form, tend toward tyranny. And that was what was unique in the American experiment where the Constitution restrained government for the first time. But obviously, if people don't read the Constitution, don't value the Constitution, then they are going to unwittingly give up rights when push comes to shove. They value their security over things like freedom.

Q: Ben Franklin warned us, "Those who would give up essential freedoms for security, deserve neither freedom nor security." Dick Gephardt actually said you've got to be prepared to sacrifice freedom for security. I don't think so!

A: No.

Q: When did your book come out?

A: April. It's still pretty new.

Q: Prophetic or luck? It's OK to be both by the way.

A: I'm not a prophet, so it must have been luck.

Q: There is going to be this big push in Congress, and we pretty much know we are going to see an erosion of freedom and liberty. What can we do to mitigate it, other than send snotty letters to our congresscritters?

A: I would suggest two things. That's definitely one thing that we can do -- complain about it. And let's face it -- we're in the minority here. Our fellow citizens are demanding this kind of giving up of our civil rights. If that happens, I think the best we can hope for is some sort of sunset provision so that these things expire and come up for review when heads are cooler and people have had more time to think, and maybe even experienced firsthand the unintended consequences. The other thing that people can do is protect yourself. Even if we build these backdoors into encryption programs, encryption servers are simply going to move offshore. The toothpaste is, in that sense, already out of the tube. They are not going to stop it. It's just going to move into jurisdictions that are more favorable to privacy, and people will still have access to them via the Internet. And even if they were to shut down all the encryption and put back doors in encryption, people can still resort to the old black-book code system.

Q: Come on, you know what's going to happen. If you are using some form of encryption or coding that the government can't access, immediately the perception is going to go back to what I mentioned earlier: "If you're not doing wrong, you don't have anything to worry about. After all, we're from the government, and we're here to take care of you." So if you are doing something that raises some bureaucrat's eyebrow and they can't find out what it is -- even if it's only your Christmas gift list or girlfriends' phone numbers -- they are going to assume you are doing something wrong, and then ... knock-knock!

A: Exactly. I'm probably just ornery enough that I'd just like to have that challenge with them. Because unless we are willing to die for our rights and put our life on the line and count the cost and do something about it, then we're going to suffer the consequences. I'm afraid our generation wants our privacy and wants our freedom cheap and easy, but it's going to come with a cost. It has always come with a cost, and it's always been at a cost against tyrants. And unless we're willing to fight that battle, we are not going to preserve these essential liberties.

Q: I am now in the process of wading through with my little yellow magic marker the latest anti-terrorism bill Congress is discussing. They are going to slam-dunk this bad bill in the next couple of weeks.

A: Yeah. They're hoping. This is the third deadline Bush has given them, but he wants a decision by Oct. 5.

Q: It's not going to be ready by then.

A: No, it isn't. I'm still analyzing it myself, like you. And some of the stuff I see in here makes me very, very concerned.

Q: A lot of it is just a rewrite of the 1993 or 1995 Anti-Terrorist Act.

A: Yeah, in some ways, it really doesn't give them anything they haven't already got. The authority to conduct secret searches, which is a provision of Section 352. One of the things the Fourth Amendment does is it says the place to be searched has to specified, it has to be limited in scope. Part of what they are trying to push through on this anti-terrorism bill is that not only would the FBI and other government agencies have these powers against terrorists, but they would have them against all criminals. Ultimately, anyone accused by the government becomes subject to the provisions of this anti-terrorism bill.

Q: I wrote a column about the "Hobbled First Amendment" and how it had been legislated against previously. You go back and look at the language in the Alien and Sedition Act or the McCarren Act or the Smith Act, and the frightening thing is there is no due process at all. If someone is presumed by some bureaucrat or executive to be "questionable," that's it! It is "Star Chamber" stuff.

A: It's exactly what France just did. They made a big announcement that they froze $90 million, supposedly of Osama bin Laden's assets. How do we know? Was there any due process? Believe me, I'm not for sticking up for this guy. I think he should be shot, and that would be too good for him. But when you're talking about denying due process, how do we know that all these accounts belong to him? Where is the evidence? Where is the due process? That's the thing that separates us from all the barbarian nations out there, all the tyrants, all the fascists -- that we believe in due process. We believe in essential liberties. If we give that up, then the terrorists really will have won something.

Q: You just capsulated my Oct. 1 column, and I'm getting all kinds of grief from folks crying, "What do you mean? Are you nuts? We gotta do something!"

A: Because you start sounding like you're defending the bad guy. But your not; you're defending the system.

Q: It's more than just the system. It's the essence of what this country is -- the Constitution and the Bill of Rights. If that's what we are supposed to be fighting for, how can you rationalize carving out a piece of it and throwing it in a trash heap in defense of it? These folks take an oath to "preserve and protect the Constitution against all enemies foreign and domestic" and then become domestic enemies. I think it may be one reason they don't really want to declare war, because Section 3, Article 3, of the Constitution would bite them in the butt.

A: You are exactly right. We're living in very dangerous times, and I think we risk losing everything that our forefathers fought for.

Q: The title of your book is "Invasion of Privacy: How to Protect Yourself in a Digital Age," and frankly, it's almost impossible, unless you live on an island somewhere and only deal in coconuts and clams for currency.

A: One of the premises I make in the book is that you are not going to protect yourself from the really determined and the really sophisticated. If somebody wants to "out" you and find out all your personal information, they probably can. What we want to do is become a "hardened target" so that we are less likely to have our personal information used in ways we don't condone.

Q: But if we become a "hardened target," then we become suspect to the government that is supposed to be protecting us.

A: That may be, but one of the biggest problems the government has now is that they can't follow up on all the leads they've got. The people at the NSA and with Echelon are simply overwhelmed with data. They had all the intelligence. They were listening to Osama talk to his mom two weeks before all this happened. I'll guarantee you when they get into this they will find they had all the conversations; everything was there for them. They just couldn't analyze it.

Q: I had a caller to a talk show years ago who claimed to have worked for some initialed agency, and he said, "Geoff, you're worrying too much. I've seen train cars loaded with data that had been collected, but no one had the time, interest or energy to analyze." But Carnivore was supposed to fix that triage problem, wasn't it?

A: Supposedly. There is a sophisticated dictionary-matching program where they run the subject headers through this dictionary program, and if they get a match, then they basically capture the whole message and set it aside for further review. But the government using just Echelon -- forget Carnivore, forget FINCEN -- just Echelon, captures the equivalent of the Library of Congress every single day. That much information. Where are they going to get the manpower to analyze all that?

Q: One common theme recently has been that the sins of the Clinton administration denied the intelligence agencies the necessary human-intelligence resources they needed to follow up on this stuff.

A: There is probably a lot of truth to that. But let's face it -- these are bureaucrats. They move slowly. Yes, they have sophisticated technology, but if we can just be smart, if we can just follow some of the basic strategies that I outline in the book, we can stay one step ahead of them. Will we throw off somebody that is really determined? Again, I'm not talking about people who are doing things that are illegal or immoral, but just private citizens who believe they have the right to be left alone. That is entirely possible, and one of the things I outline in the book.

I don't know how you protect yourself against every kind of technological threat. My philosophy is take control over what you've got control over. Leave the rest with God, and don't worry about it.