Private Data, Secret Surveillance, and the Need for Public Debate

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written by
Gigi Alford
Senior Program Officer, Internet Freedom
written by
Ilana Ullman
Program Associate, Internet Freedom

Almost as troubling as the recent revelations about the U.S. government’s sweeping collection and analysis of the personal information of law-abiding internet and phone users are the inadequate “just trust us” response to the outrage and the administration’s lack of decisive action to regain the faith of a tense American public and wary netizens abroad.

Under the U.S. constitution, citizens are guaranteed protection from unreasonable searches and seizures by their government. Violent events, such as the Boston Marathon bombings, leave no question about the serious need for strong security measures. However, maintaining an appropriate balance between security and privacy requires constant public vigilance. Any state surveillance of personal communications is an intrusion into the private domain. While exceptional circumstances may render this intrusion necessary and justified, it is only permissible when associated with a targeted investigation, conducted according to a court-supervised and transparent process, and guided by fundamental human rights principles. Freedom House outlined its views on this subject last week in its oral statement at the UN Human Rights Council session on freedom of expression.

Unfortunately, it appears that the requirements for permissible surveillance were not met in the instances of secret U.S. court orders that have recently come to light—both the large-scale seizure of Verizon customers’ metadata and the secret internet data collection operation code-named PRISM—which appear to involve incredibly broad data gathering and storage by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).

These examples raise concerns that current legal and judicial protections are no longer sufficient to prevent government spying from creeping into the private lives of law-abiding individuals. Technology has evolved significantly, with new applications and means of communication being developed on an almost daily basis, including new modalities for surveillance. These changes demand public debate and consensus on new limits and laws to prevent the abuse of novel technologies.

It is unsettling that the evidence that has surfaced of late appears to contradict past and current statements and sworn testimony by government officials, including Director of National Intelligence James Clapper’s testimony before the Senate Intelligence Committee in March 2013. When asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir.… Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.” These inconsistencies damage public faith in government leaders and undermine confidence in the constitutional system of checks and balances. The administration should, without delay, work toward restoring this trust and its moral authority at home and abroad by fully explaining its current surveillance policies and their justification, including the risks and benefits. Meanwhile, Congress should hold hearings to shed more light on what has happened to date and reassess these policies for the future.

While various official and external responses to the leaked information have offered assurances that safeguards are in place and rigorous procedures are followed by the Foreign Intelligence Surveillance Act (FISA) court, these assurances cannot be independently verified. It is relevant to note that in 2012, the court did not deny even one of 1,856 FISA applications from the Justice Department. Other defenses that have been articulated on behalf of the surveillance programs are not only impossible to corroborate, but also misleading or misguided. For example:

  • Content vs. metadata: Much of the argument in defense of the FISA-authorized telephone metadata collection has focused on the assertion that the NSA is not listening in on phone calls, but rather capturing “metadata,” such as phone numbers, call duration, and phone location history. Metadata are ultimately personal information, which many individuals don’t and shouldn’t want the U.S. government—or any government—to vacuum up without their consent. Collecting metadata is a significant violation of privacy, as much can be inferred, whether correctly or incorrectly, about individuals’ private lives based on metadata alone, including their religious beliefs, political affiliations, social contacts, medical issues, and so forth.

  • Only foreign nationals targeted: There are numerous problems with this claim, not the least of which is its incongruence with the borderless nature of the internet. Foreign government leaders, including democratic U.S. allies, are rightly making the case that their citizens are stunned by this defense. And dissidents in nondemocratic countries are left to wonder whether U.S. agencies share their information with local authorities. Meanwhile, U.S. citizens are stunned that NSA agents are required to have a mere 51 percent confidence in a person’s “foreignness” to search and store their personal internet communications data. Even if the program only targets non–U.S. citizens, data about U.S. citizens are still caught in the trawl.

It is time for a serious, open, and public debate on government surveillance that goes beyond pat assurances and partial revelations. The only way for this debate to lead to transparent and effective lawmaking is for the U.S. government to officially disclose to the public the existing laws and procedures surrounding its surveillance programs.

A free country does not need to become a surveillance state to maintain public safety and carry out legitimate investigations of criminals online. President Obama and Congress must take a principled stand and heed public calls for a frank and unfettered conversation about what has happened and how to move forward.

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