Friday, December 20, 2013

Hear, hear, A victory for privacy, except for non-Americans

On Monday, a US district judge, Richard J. Leon, granted an injunction blocking the collection of phone data of two plaintiffs – one of them conservative lawyer Larry Klayman – and ordered the government to destroy any data it had accumulated on them.

Leon found that the legal suit had “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches. He went on to argue that the National Security Agency’s data collection programs were most probably unconstitutional, even though he delayed action on his decision pending an appeal by the government. 

Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” He went on to note, “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The decision was welcomed by opponents of the NSA’s surveillance programs, including Edward Snowden, the contractor who first leaked documents on the programs to the media. More importantly, Leon’s decision represents the first legal reversal to an array of US surveillance operations. While these have been approved by a panel of judges, critics allege that the information given to the panel presents only the government’s side of the argument and therefore does not allow a proper assessment of the surveillance programs’ legality.

As an example, Leon made the startling revelation in his decision that “[t]he government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.” One of the government’s principal arguments in defending its surveillance is that on several occasions it prevented such attacks. Leon has undermined that bogus claim.

In fact at every stage the US government has been caught lying about both the scope and intent of its surveillance. The government was protecting Americans by monitoring terrorists and their contacts, we heard officials say. But that argument now comes with a laugh track, amid revelations that that the NSA was also listening in on the cellular telephone conversations of German Chancellor Angela Merkel and other leaders, as well as on the diplomatic missions of, among others, European nations in New York, Washington, and Brussels.

Officials also insisted that, while the global surveillance effort did target non-Americans, the privacy of America’s citizens and residents was always protected – and anyway the government only collected metadata, in other words information about communications, not the actual content of people’s emails and conversations.

But that too was quickly shown to be nonsense. The sheer volume of material gathered meant that vast numbers of Americans, and the details of their private communications, were being swept into the NSA’s wide net, if only by virtue of being in touch with people overseas. As Leon pointed out, this was tantamount to a “dragnet” that intruded on a constitutional expectation of privacy.

In response to the government’s argument that it had “special needs” requiring it to have quick access to data in order to thwart terrorist plots, Leon was acerbic: “No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” he wrote.

In describing the NSA programs as “almost Orwellian” in their scope, Leon showed that he understood the frightening magnitude of what is going on. Unfortunately, American judicial decisions only affect Americans or those living in the United States. For most people around the world there are no safeguards protecting their privacy, whether they are being monitored by the NSA or the eavesdropping arms of dozens of other intelligence agencies in Europe or Asia.

Faced with global anger with the United States, pressure from technology companies who fear losing valuable business, and continuing uncertainty over what Snowden has in his possession, the Obama administration retreated. The White House formed the Review Group on Intelligence and Communications Technology to make recommendations on how to limit the NSA programs.

Earlier this week the White House released the review group’s report sooner than originally planned. This was apparently a reaction to the mounting anxieties of the technology companies, but also a response to Leon’s ruling, which embarrassed the administration. The panel’s recommendations, while they went a certain distance in addressing critics’ fears, fell short of what they had been demanding.

Few reforms were proposed on foreign surveillance. The reality is that spying is much more controversial when directed against one’s own citizens; when directed overseas, there is little momentum to discontinue surveillance programs. But the technology companies, because they function in a global market, think differently. They will remain vulnerable to the retaliatory mood abroad for as long as they are perceived as being in league with the American government.  

Ultimately, it is unrealistic to expect a surveillance-free world. The Obama administration backtracked because American society remains democratic. Under the withering glare of publicity, it became difficult to ignore its disregard for constitutional guarantees.

But many countries routinely invade individual privacy. Conveniently, the focus on the United States has drawn attention away from them. The fight for privacy will continue, but expect victories only in those countries where liberty actually means something. 

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