The revelation that the National Security Agency has been gathering our private data is like a fantastical movie made believable. Remember “Mercury Rising,” “Enemy of the State” or the Bruce Willis action flick “Live Free or Die Hard?” Those were exciting, except I scoffed at the overall premises.
My bad.
We now know that programs like PRISM have accessed online data from a variety of Internet companies and NSA has collected millions of phone calls. And the response, “Oh well, I have nothing to hide,” is horrible for a number of reasons.
For one, as Wired magazine pointed out in a recent opinion piece, you actually don’t know if you have something to hide. There are so many federal crimes on the books, perhaps as many as 27,000 pages worth (even the government has a hard time keeping track), that you may be breaking the law, you just don’t know it yet.
What’s more, as the piece points out, this is not the way Americans should negotiate with its government on the importance of balancing privacy and security. “A good negotiator doesn’t begin a conversation with someone whose position is at the exact opposite extreme by leading with concessions.”
The response from Congress to Edward Snowden leaking confidential information on the government programs has varied widely. The speaker of the House of Representatives called Snowden a “traitor.” Sen. Lindsay Graham, R-S.C., said he’s “glad” NSA is tracking phones and law-abiding citizens “don’t have anything to worry about.” Montana’s delegation’s response has been more measured.
Sens. Max Baucus and Jon Tester have called for the Privacy and Civil Liberties Oversight board to investigate the programs. “I have very serious concerns with law-abiding citizens getting swept up in surveillance that is meant for terrorists,” Baucus said.
He should be concerned. And so should we, even if we agreed to parts of this monitoring. Most of us didn’t know that, because most of us don’t read the terms and conditions we agree to online, such as for Facebook and Apple.
As Time magazine reported, tucked in the lengthy legal verbiage required to use a number of major websites there is terms of service language explaining that data will be shared “if we have a good faith belief that the law requires us to do so” or “for the purposes of national security, law enforcement, or other issues of public importance.”
That’s quite vague. And even if companies deny that the government has access to their servers, and the government maintains that its aim is only tracking suspected terrorists, the extent of PRISM – the fact that this data can be regularly and easily accessed – is astonishing.
Other parts of NSA spying, the collection of phone records, appears to be authorized by the much-maligned Patriot Act. Jeffrey Rosen, president of the National Constitution Center and a law professor at George Washington University, explained to National Public Radio how Section 215 expanded the Foreign Intelligence Surveillance Act and allows security officials to pursue “any tangible things.”
“215 removed the limitation that it had to be a suspected spy or terrorist whose records were being sought,” Rosen said. “Now, anyone’s records can be sought. The only limitation is that the secret warrant has to be relevant to a national security investigation.”
Again, whether law-aiding citizens have anything to hide is completely beside the point. The fact that the government has such extraordinary power – and views warrantless spying on the people it represents in the name of national security within its rights – is the foremost concern.
To their credit, Baucus and Tester voted to end the FISA program in 2012. Perhaps holding NSA accountable will now gain more traction.