MARC WHEAT: Don’t Fall For Left’s Selective Outrage About Government Data Collection

The left has panicked lately that the Department of Government Efficiency (DOGE) has gained access to federal databases. However, they have been perfectly content to let career bureaucrats collect such information from the American people. There was no massive outcry, for example, when Congress passed the Corporate Transparency Act (CTA), a law that requires owners of almost all corporations registered in the states to report personal information to the federal bureaucracy to be collected in a massive database.

Such databases have already proven to invite hacking and abuse from actors far more sinister than DOGE. Last year, Chinese state-sponsored hackers breached the Department of the Treasury’s computer security guardrails. In 2016, hackers broke into the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system (EDGAR), which processes over 1.7 million electronic filings annually, and “traded on at least nonpublic 157 earnings releases,” enriching themselves by over $4 million. In 2018, a hacker breached 60 million records of US Postal Service user account details; and in 2015, hackers stole the personal information of 21.5 million current and former federal government employees from Office of Personnel Management files in 2015. Even the brave men and women who have risked their lives for our nation have not been protected from such intrusions. The healthcare information of 4.6 million active duty servicemembers, veterans and their family members was compromised in a 2011 Tricare breach. That such federal databases are so insecure did not stop the SEC from getting in on the action creating the similarly vulnerable Consolidated Audit Trail (CAT) to unconstitutionally compile the personal information of Americans who invest in the stock market.

The Constitution only confers limited, specifically enumerated powers on the federal government. The remaining powers are given to the states. One of the federal government’s enumerated powers is to regulate commerce among the states. The original meaning of the clause is clear: commerce meant trade and among the states meant—well—among the states. A broader reading would, if followed consistently, turn much of the rest of the Constitution, including the 10th Amendment, on its head. Similarly, the original meaning of the necessary and proper clause conveys to Congress only the power to carry out the powers already granted to it.

The CTA regulates the non-commercial, wholly intrastate activity of incorporating under State law. Accordingly, no enumerated power supports the CTA. The CTA also violates the letter of the Constitution, namely the First and Fourth Amendment, by undermining anonymous association and requiring potentially millions of Americans to disclose their personal information absent a warrant or even any suspicion of criminal activity. The CTA and other vast government databases (like the aforementioned CAT) seek to expand the federal government’s reach even further beyond its constitutional limits and infringe upon state prerogatives.

The future of the CTA is uncertain, facing challenges in all three branches of the federal government. First, it is facing litigation challenging its legality. The amicus brief of Advancing American Freedom and our 43 cosigners in Texas Top Cop Shop v. Bondi, urges the Fifth Circuit to rule against the CTA’s unconstitutional data collection.

Second, the Trump administration has announced that it will not enforce the CTA’s reporting requirement. Because the president’s core responsibility is to enforce constitutional laws, forgoing enforcement of the CTA is justified pending the litigation of its constitutionality.

Finally, Republican Ohio Rep. Warren Davidson and Republican Alabama Sen. Tommy Tuberville’s “Repealing Big Brother Overreach Act,” would repeal the CTA. Twenty state-level Secretaries of State wrote a letter to the president urging him to call for the  Act’s repeal and sign Davidson and Tuberville’s bill. The CTA is finally getting the attention from government officials it deserves. Protecting the privacy of Americans’ personal information from the prying eyes of government is an essential element of liberty. Our government officials’ outrage at invasions of that liberty should be consistent whether perpetrated by DOGE or big brother.

Marc Wheat is the general counsel for Advancing American Freedom.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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