In the battle between the need for national security and the sanctity of personal privacy rights, this has been a week of bombshells.
First, the Guardian disclosed a top secret order issued to Verizon to supply the National Security Agency with all of its call meta-data. Then, TCF senior fellow Barton Gellman broke the story revealing the existence of the PRISM program, which allows the NSA and the FBI to tap “directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets.”
It has been nearly a dozen years since the terrorist attacks of September 11. The initial reaction of Congress to the attacks was swift—the USA Patriot Act was drafted and then signed into law by President George W. Bush less than seven weeks later, granting the U.S. government unprecedented search and surveillance powers. In the intervening years, in the name of national security, we have learned to live with removing our shoes to board a commercial flight. But as the revelations of this week show, there has also been a quieter yet more disturbing challenge: is it reasonable to expect the American people to become accustomed to the U.S. government having information on or even access to virtually all of our electronic communications?
In 2005, when the USA Patriot Act was up for reauthorization, we released Stephen J. Schulhofer’s Rethinking the Patriot Act: Keeping America Safe and Free. In that report (which can be downloaded here), Schulhofer fully recognized the need to guarantee national security, but he also noted the dangers of the use of overly broad surveillance methods:
History spotlights several distinct harms that result from conferring too much intelligence-gathering power. One of these, the loss of privacy and similar liberties, is self-evident but too often ignored. Another also is frequently forgotten. Even when government agents justifiably intrude into private domains and collect sensitive information for appropriate reasons, there remains a substantial danger that, without adequate safeguards, the information legitimately acquired will be misused for illegitimate purposes. The FBI history, unfortunately, offers far too many examples of this tendency, even in an agency largely staffed by dedicated and conscientious professionals. . . .
The challenge now facing our nation is to create a framework for vigorous intelligence gathering and rapid initiatives in counterterrorism matters without opening the door to the abuses of the past or their contemporary equivalents. One need not fear the appointment of a new J. Edgar Hoover to worry that broad discretion to initiate surveillance, build files, and spy on dissident political and religious minorities could harm innocent individuals, stifle First Amendment freedoms, and waste limited investigative resources that, now more than ever, need to stay targeted on the most serious potential threats.
While much of Schulhofer’s report details necessary and useful provisions in the USA Patriot Act, he also suggests establishing more reasonable boundaries on government surveillance as well as guaranteeing appropriate executive branch accountability for its actions.
After the revelation of the PRISM program on Thursday, James R. Clapper, the director of national intelligence, issued a statement that said,
information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.
A common refrain used in defense of such remarkable intrusions into personal privacy is that, as long as you are doing nothing wrong, then you have nothing to worry about. Turning that around, then, as long as programs like PRISM are “entirely legal,” then, after their disclosure, Clapper should have nothing to worry about.