Monday, August 12, 2013

Snooping Unopposed

When a government official, especially the President, makes an announcement on a Friday, you should probably pay attention.  Scott Wilson and Zachary Goldfarb from the Washington Post report that this past Friday, President Obama spoke to reporters about his plans to "open the the legal proceedings surrounding government surveillance programs" for greater oversight by the public and add an "adversarial voice" to advocate for privacy rights.

As you already know due to the disclosures of one Edward Snowden, the NSA has been making "bulk collections" of data relating to telephone conversations, including those of Americans.  This information includes the originating number, the receiving number, the location of both, and the duration of the call.  Paired with the ongoing detention of "enemy combatants" on foreign soil with limited  due process rights, this becomes a very scary program.  But you're an American, so you should be ok.

Should the infringement of the "inalienable rights" of foreign citizens not be of concern to you, we still have the basic premise that "the NSA is 'spying' on Americans".  The argument has been made that the data collected is not covered by any cognizable "right of privacy" and is otherwise forfeited to the phone company from which the data is derived.  "You gave that information to AT&T.  We rightfully demanded that information from AT&T under the Patriot Act.  You were never disturbed in the process."  This reasoning is tacitly supported by the Court's decision in United States v. Miller, which held that citizens do not have a Fourth Amendment right to privacy in bank records disclosed to third parties (i.e., the bank).

Decisions of the Supreme Court have similarly held that individuals have no privacy rights with regard to those things that are forfeited to the public at large, such as trash.  The contra would be that the Supreme Court has also held that the heat eminating from a suspect's home may not be detected with thermal imaging without a warrant (premised on the idea that thermal imaging would essentially allow police to watch the movement inside someone's home without ever requiring a threshold showing of proof).

But here's the scary part - the decisions cited above mean absolutely nothing in the context of NSA surveillance.  The judicial branch is excluded from the program, making this a two branch operation.  We don't know where the intrusion begins and where it ends.  We don't know whose data is being collected.  We don't know what this data is being used for (um, to make America safe, dummy).  We don't know what data is being kept and what data is being discarded.  We don't know what data is being shared with other law enforcement agencies.

Even more scary - Congress doesn't know.  Everyone should read the linked article by Peter Wallsten recording Congress's frustration with their own inability to have meaningful oversight over NSA Surveillance.  Anyone who has worked out of a Sensitive Compartmentalized Information Facility (SCIF) can tell you that the room alone discourages your presence.  It is windowless, hot (often not air conditioned), stuffy, and about as small as possible while being able to hold the computers and records necessary to be functional.  You can't take notes (or at least not notes that can leave the room) and you certainly cannot bring your own computer in. These small hot rooms are the sole means of oversight for an NSA program known to incorporate spying on US citizens.

So let's retreat to the last bit of solace available when facing down the full force and power of the United States government - I didn't do anything wrong.  "I'm an open book.  Look at whatever you want."  I love this bit of permission because it presumes the allowance of permission.  You have no say, sir.  You have no say, ma'am.  Whether you are an open book or not, no one is asking your permission.  It is being usurped. 

This is not a President Obama thing.  This is not a President Bush thing.  This is a "Government Unrestrained" thing.  We kicked out a leg on our three-legged stool and are now stuck with its tottering.  When I heard of President Obama's proposal to create an adversarial voice, I thought of KIND.  Every day there are children brought into immigration court for deportation.  There is a government lawyer on one side and an empty chair on the other.  This is the government's idea of an adversarial process: An eight year old vs. career attorneys.

I don't think these reforms are sufficient.  We all acknowledge that privacy and security are constantly being balanced, but the NSA surveillance program as it is exists allows those tasked with security to place their own value on the competing interest.  If we take that tool out of their tool-kit, we will be less safe.  The likelihood of Americans being killed by those who mean us harm will increase.  But the haunting specter of our own government peering more and more into our private lives will be diminished.  I think that matters more.  I think we all have a right to have that discussion.  Right now we don't.

That's all for today.  Have a great Monday doing what you love.

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