Security, Surveillance, and Privacy

Edward Snowden’s recent leaks revealed that the NSA (the National Security Agency) has been collecting information on every telephone call made in the United States. The NSA doesn’t listen in on the calls, but it does record the caller’s telephone number, the recipient’s number, and the duration of the call. The Director of the NSA, James Clapper, has confirmed that the NSA is, in fact, collecting this phone information.

The scope and extent of NSA surveillance of American citizens is troubling to say the least, and down right scary to say the most.

Republican Representative Justin Amash of Michigan has filed an amendment to the pending Defense Appropriations Bill that would end “blanket collections” of this phone information, and only allow collection of this data when someone is the subject of an investigation. Amash and an interesting group of liberals and conservatives are concerned that the government is going too far in collecting information on all Americans.

This issue raises important questions about balancing security and privacy. Most people agree that one of the main purposes of government is to protect the security of the nation, but is it possible to go so far in protecting security that it infringes the rights of the people? Certainly so. Clearly it might be possible to maintain the maximum level of security in a militarized police state, but it would no longer the nation our founder’s created. Individual rights, political liberty, and personal freedoms are core components of this nation. We should be loath to trade away any of those in a misguided attempt to protect our security. But most people are certainly willing to accept certain reasonable restrictions in a balanced and thoughtful attempt to gain some added level of security. So is the NSA program the former of the later?

The NSA says that they need to have all of this information so they can sort through it to see who is calling certain places (say the lawless regions on the Afghanistan Pakistan border) or certain numbers. The NSA says that in order to find the needle in the haystack, they need to be able to sift through the hay. The NSA also says that they have used this process to stop a number of terrorist attacks.

Rep. Amash and others say that the NSA is violating our right to privacy, but the courts have long held that there is no right to privacy in our phone records. We have a right to privacy in those things that we keep private, and have far less right to privacy in those things that are essentially not private. The question is whether there is a reasonable expectation of privacy.

The courts note that when we make a phone call we rely on the phone company, and today we rely on numerous phone companies. Once upon a time when we made a phone call we would call an operator who would connect us to the person we were calling. Clearly the operator knew who we were calling, and we knew that the operator knew. While phone companies have long since abandoned operators to connect phone calls, they still need to know where the call is coming from, and where it is going to, in order to make the connection. We give this information to the phone company in a trade off in order to reach our desired party. We may not realize that we are doing this, but we are. And, once upon a time, we used to get a phone bill that showed every number we called, and the duration of the call. This was standard on the old long distance phone bill. So we were aware, whether we appreciated it or not, that the phone company had this information. And if we were sharing this information with the phone company, then it could not be private.

The same holds true for e-mail (since we rely on our ISP and the phone companies to transmit the data) and snail mail (since the address on an envelope is on the outside for anyone to see).

I am concerned about this level of scrutiny and surveillance of the American people. It does smack of big brother. But I also recognize the need for searching through this kind of information. I think the better solution is not to kill the program, but to create better oversight. Perhaps there should be a Congressional Committee that can periodically review the operation of the program. I also think the Foreign Intelligence Surveillance Court (the secret court created to review requests for subpoenas to conduct investigations based on the data obtained from these broad surveillance programs) should have clear, and public, criteria for authorizing a subpoena, and should periodically publish information about how many requests are made, and how many are granted. And if it turns out that government agencies are abusing the program, then perhaps we should consider restricting it, or eliminating it entirely.

Author: Mike

I am a patent attorney in Lexington, Kentucky. My law firm web site is http://www.coblenzlaw.com. I ran for State Representative in 2010 and lost in the primary. Many of these posts are based on writing that I did for that election. Rather than delete it all, I decided to dump it onto the internet.

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