Privacy and National Security

The recent revelations that the National Security Administration has been collecting metadata for the phone calls of American citizens and that they have been acquiring data from Google, Yahoo!, facebook, and other internet companies comes as no big surprise to many. Sen. Frank Church’s investigation in the 1970s into government surveillance revealed a long history of surveillance. The Foreign Intelligence Surveillance Act of 1978, its subsequent amendments, and the PATRIOT Act left enough clues to create a disturbing picture of what the government might be doing. Furthermore, there have been plenty of past news reports providing evidence of surveillance; but with the revelations from Edward Snowden, any room for willful ignorance is now over. The surveillance programs are out in the open and have sparked a media debate. Even Congress took up the issue.

According to news reports, the debate is about “balancing” national security against privacy. Numerous news sources and blogs have published (verbatim) the sentence, “The revelations have reopened the post-Sept. 11 debate about individual privacy concerns versus heightened measures to protect against terrorist attacks.” Obama put the question this way: “How are we striking this balance between the need to keep the American people safe and our concerns about privacy?” House Minority Leader Nancy Pelosi put it most succinctly, “We have to have a balance between security and privacy.” Even critics of the surveillance policies have adopted this framework. American Library Association President Barbara Stripling writes, “We need to restore the balance between individual rights and terrorism prevention.”

The problem with framing of the debate in this way is that it tends to overestimate the benefits and underestimate the harms. Worse yet, the most important harms are overlooked entirely. Our attention is directed to benefits that accrue to the whole of society (national security) and to harms posed only to individuals (the invasion of privacy). We are led to think that the NSA surveillance programs protect us from terrorism, while the only down side is that certain individual’s rights to privacy might be underweighted in the “balance.” Framing the debate this way seems to ask: should the government be prevented from setting up an anti-terrorist database on the grounds that some security analyst might – as a side effect – discover that someone is secretly visiting internet porn sites or dialing 1-900-SEX-CHAT? Framed in this way, personal privacy amounts to a dispensable luxury, particularly when Obama assures us that the surveillance programs pose only “modest encroachments on privacy,” and that “nobody is listening to your phone calls” – they’re just collecting metadata.

Of course, embarrassing publicity can have important political consequences, particularly as it might be used against politicians, but the public is likely to conclude that a sexting politician is too stupid to deserve much sympathy. Beyond damaging particular high-profile political careers, there are more serious concerns. FBI agents might be led to discover who is organizing climate change rallies or Tea Party meetings and then obstruct these movements by causing trouble for perfectly law-abiding citizens. But even in these cases, the public is likely to conclude that targeting peaceful political groups will be limited by the FISA court and that covert interference with fringe political movements will be a criminal aberration made rare by the integrity of intelligence agents and the threat of prosecution. So much for privacy concerns.

In contrast to this, we are asked to consider national security, specifically, “terrorism.” The Director of the National Security Administration, Gen. Keith Alexander, tells us that the controversial surveillance programs “help[ed] prevent” fifty-four “potential terrorist events” – whatever that means. The terrorism threat, however, has been enlarged well out of proportion. The number of Americans killed or harmed by terrorists pales in comparison with the number harmed by the most routine dangers we face every day. Moreover, the harms that might come from “terrorist events” are largely speculative and vague enough that a scenario can be concocted that is so grim as to put any civil libertarian on the defensive. Think of Condoleezza Rice’s remark, “We don’t want the smoking gun to be a mushroom cloud.” Even our ostensibly liberal president assures us that these programs “help us prevent terrorist attacks.” It is no wonder that many Americans are unconcerned about (even welcome) these surveillance programs.

What is seldom mentioned is that these massive surveillance programs do not just pose a threat to individual privacy. They pose a profound threat to democracy. When the threat to democracy is mentioned, it tends to be a rhetorical addendum. For example, Barbara Stripling writes, “the surveillance law erodes our basic First Amendment rights, all while undermining the very fabric of our democracy.” Stripling deserves great praise for her remarks on this issue, but we are left to figure out for ourselves how the fabric of democracy is undermined. I will explore this danger in a future post to this blog.