Thursday, June 13, 2013

Abandon privacy, the NSA tells America

The debate over whether the National Security Agency had the right to gather personal telephone data on Americans continues to rage. Many are uneasy about the ability of the government to collect private information on individuals if there is no probable cause or suspicion of their involvement in a crime.

The right to privacy is best expressed in the Fourth Amendment to the U.S. constitution. It affirms: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Americans are ambiguous about the NSA program. According to a Rasmussen poll just 26 percent of voters were in favor of the NSA’s collection of data from the Verizon telephone company, while 59 were opposed. A CBS poll found that 58 percent disapproved of the program when used against “ordinary Americans,” while 38 percent approved. However, when respondents were asked whether they backed the gathering of phone records of “Americans suspected of terrorist activity,” 78 percent said they had no problem with this, while only 20 percent disapproved.

The NSA scandal covers two programs, with different implications. The first involves the collection by the NSA of so-called telecommunications metadata from domestic subscribers of the Verizon telecom company. Metadata are details of communications (time, place and duration of a call, the numbers of the caller and of the person or institution called), but not the content of conversations.

The second involves a program called Prism, where the NSA has mined information, including the content of communications, from servers of major technology companies such as Google, Skype, Microsoft, Apple, YouTube, Facebook and others. The program is primarily directed against foreign targets, and the NSA was able to implement this because much Internet traffic from overseas passes through servers in the United States.

Obama administration officials have defended the programs as necessary to fight terrorism. President Barack Obama stated that “you can’t have 100 percent security and also then have 100 percent privacy” because “there are some tradeoffs involved.” That would be true if 100 percent of anything were possible. But Obama missed the point. The issue was not greater security, but the fact that millions of Americans were caught up in a surveillance net without being suspects in a crime, were never told about this, and are being discouraged from learning more for national security reasons.

The NSA programs received congressional approval, and were mandated by a decision of a secret court, the Foreign Intelligence Surveillance Court, which approved requests for the data collection. Moreover, the Supreme Court has said there is no right to privacy if an individual’s records are taken from third parties, because allowing a third party (a phone or Internet company, for instance) to hold these records means voluntarily surrendering one’s privacy.

In a dissent, Supreme Court justice Sonia Sotomayor argued that this decision was ill suited for the digital age, where people revealed a great deal about themselves thanks to the technology they used, but nevertheless had little intention of granting the government access to their personal communications or browsing history. In other words Sotomayor implicitly pointed to the spirit of the law, or what citizens understood their right to privacy entailed.

Defenders of the NSA programs assured the public that proper safeguards were in place to protect the innocent. Perhaps, but the FISC has rarely turned down a surveillance request, and the sheer volume of information taken from Verizon means there is probably little oversight in individual cases, once data has been collected.

Eavesdropping is usually built on a de facto presumption of guilt. When a person is under scrutiny, all those connected to that person are in danger of being scrutinized as well. But because data mining has become an essential part of American intelligence gathering, in the Verizon case the NSA asked for broad authority to collect data from everybody, just in case it eventually became useful in an investigation. This qualifies as a fishing expedition, which democracies avoid.

A second problem with the NSA programs is their secrecy. Secret warrants and courts, whatever their justification, are the stuff of totalitarian nightmares, and are designed to circumvent public discussion. Nor do we know how effective congressional or FISC oversight was, since no one will talk about an issue that is classified. In other words, Americans are not entitled to know how or even if their rights were protected, and must take officials’ word for it.

How difficult that is when the director of national intelligence, James Clapper, is doing the reassuring. Last week he insisted that the oversight was sufficient. But Clapper is hardly reliable. When asked last March before a congressional hearing whether the NSA was collecting data on Americans, he replied that it was not.

A third problem is that a proposed solution to a threat should not become worse than the threat itself. It would be foolish to play down the risk of terrorist attacks in America. But the NSA surveillance program applies a wide brush to a relatively narrow problem, and it navigates in a gray zone between how the law is interpreted by the government and understood by the public. Fighting terrorism should not entail undermining a cherished constitutional principle, whatever Obama’s comments on the necessary tradeoffs at play.

The right to privacy erects an essential barrier between individuals and their state. States amass vast amounts of information on their citizens, which can be used to control what they do. The feeling of being perpetually under the eye of those in authority is deeply troublesome. The more power states have, the more they will use and abuse it. And that’s what most people understandably fear.

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