Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 10, 2013

Should We be Troubled about the “Surveillance State”?

Catholic teaching affirms the moral weight of privacy and confidentiality, as a matter of respect for human dignity.  As the Catholic Catechism says, even beyond the special protection of professional secrets, “private information prejudicial to another is not to be divulged without a grave and proportionate reason.”

Having now been identified in The Guardian as the “whistleblower” on the National Security Agency’s (NSA) surveying data from internet traffic, 29-year-old defense contractor employee Edward Snowden says that he was willing to sacrifice his high-paying job and a comfortable life in Hawaii “because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

Others have responded that this is much ado about nothing, with little danger to privacy.  As one commentator assures us, “Calm down, folks. Big Brother is not watching you.”

Still, as more comes to light about the secret surveillance programs, such assurances are increasingly less than reassuring.

At first we were told that only metadata was being collected about international telephone calls -- lists of phone numbers called from another phone number, etc.  Probable cause would have to be shown to obtain a court warrant before anyone could actually listen in on a telephone conversation -- although apparently only if national security personnel concluded that someone inside the United States was on one end of the call.

But then we learned that internet databases are being mined by the NSA, producing a massive central collection of data that may include all Americans, as well as foreign individuals.  While the only legitimate targets for data searches may be foreign individuals and foreign internet communications, the large national security fishing net sweeps up Americans as well.  We are promised that domestic fish will be tossed back into the virtual sea.

In an editorial more than a decade ago, criticizing the Bush Administration’s similar “Total Information Awareness” program, Ben Stone (the head of the Iowa Civil Liberties Union) and I argued:

When law enforcement has a particular reason to suspect that an individual is violating the law, the government always has had the option of obtaining a search warrant or issuing a subpoena to secure information crucial to an investigation of an actual crime, including obtaining consumer information from credit-card issuers about recent charges on cards, from internet service providers about activities on computers, etc.

But the government may gather that information only when it has a basis to believe that an identified person is engaged in criminal activity.  To allow the government to assemble a detailed dossier on everyone in advance is to treat every American as a criminal suspect.

Nor am I much comforted by the supposed reservation of this database to targeting foreign individuals for national security reasons.  We are told the government may trove through its comprehensive data collection for information on an individual only if it believes that person is foreign.  The data sifting methods supposedly “are designed to produce at least 51 percent confidence in a target’s ‘foreignness.’" By that measure, a rather large and non-trivial percentage of the specific individualized data profiling ends up being assembled (mistakenly we are told) on Americans.

If the government has undertaken to collect massive amounts of individually-identifiable data into a single information silo, we need to know more about what it is doing and what are the safeguards in place to prevent abusive harvesting of that information.

Writing in 2002 about the Bush Administration surveillance plan, Ben Stone and I noted that “[t]he government spy-masters promise that, once the Total Information Awareness program has been developed, shields then will be established to avoid abuse of the information.  However, the time to set up safeguards is now, before the genie is out of the bottle.”

Here we are more than a decade later -- and we still know little about the safeguards put in place.  In fact, until the past several days, we didn't even know that the surveillance program existed, as to which safeguards would be necessary.  And now we we are told that the specific nature of any safeguards must be kept secret to protect national security and prevent terrorists from trying to avoiding monitoring.

Excuses that classified security methods would be exposed should not be permitted to shield government actors from justifying the program as a matter of principle or from democratic debate about the limits on use of such information:

* Is it wise or proper for our government to gather previously scattered bits and pieces of data from different and unconnected sources of transactions and blogs and social networks, which then could be used to assemble a complete digital picture of the private life of each American?

* How exactly is the government preventing sampling of that data for political purposes or even for ordinary domestic law enforcement purposes?

What structures are in place so that rogue analysts within the intelligence community are not able to target individuals for cyber-harassment or embarrassment?

Thus far, the law has been interpreted in secret.  The law is being executed in secret.  And even violations of the law are being kept secret.  The national security court apparently has ruled that the government’s surveillance methods have crossed the legal line at times and in certain ways.  But the Justice Department has sealed that judicial rebuke away from the public.  Under such strange circumstances, confidence in that law is hard to maintain.

Stewart Baker argues that “it’s hard to imagine a system with more checks and restrictions and doublechecks than one that includes all three branches and both parties looking over NSA’s shoulder.”  Maybe so.

But the congressional check apparently is limited to only a few committee leaders and the ultimate public check of democratic accountability is undermined by the secrecy about the fact of any surveillance (until the leak), much less anything beyond vague assurances of restrictions.

But I am skeptical that such controls will succeed.  Quoting from my decade-old editorial, “[t]he very process of continually gathering and cataloguing information about private citizens for a giant database necessarily allows access to too many people and creates too many holes in the wall through which private information may be leaked.”

The scandal about the Internal Revenue Service -- including the leaking to liberal groups of confidential tax information about conservative groups -- is but the latest in a long line of governmental abuses of information gathered on individual citizens.

In any event, it’s time that we heard more about, and had an opportunity to challenge the policy and practical implications of, those “checks and restrictions and doublechecks.”  Given that an employee of a government contractor who didn't have a high school diploma was able to copy and remove classified documents so as to reveal the existence of the government surveillance program, the safeguards in place to protect that data appear to be demonstrably inadequate.

Omniscience has always been thought to be one of those characteristics reserved to God -- at least before the rise of the Surveillance State.  Now we should have a robust public debate about whether an omniscient government -- even one that promises not to look without a really good reason -- is a good thing.



Sisk, Greg | Permalink


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Let us not forget that, in addition to all this surveillance power, the President claims the power to kill anyone anywhere that he deems a "terrorist."

Sic semper tyrannis.

Posted by: CK | Jun 11, 2013 10:27:59 AM

The President does not claim the power to kill anyone anywhere that he deems a "terrorist." There are certain requirements that he must follow before such lethal force is to be used. He does not disagree and Eric Holder recently repeated this basic principle in a letter to Congress.

The OP provides some good material to ponder and I appreciate the appeal to Catholic principle here. Privacy, including autonomy, is basic to Catholic thought. A convert, e.g., has to consent. Freedom of conscience as Elaine Pagels noted in her book on Revelations was an important aspect of early Catholic thought. This is a matter of privacy. As is marital privacy, prayer in private as Jesus counseled and other things. Prof. Anita Allen in "Unpopular Privacy" even suggests sometimes privacy is so important it can be required in some fashion when it is unpopular.

Posted by: Joe | Jun 11, 2013 11:16:01 AM

This might be a good time to look back at James Otis on the Writs of Assistance: http://www.nhinet.org/ccs/docs/writs.htm

The Writs were one other major impetuses of the revolution

Posted by: CLS | Jun 12, 2013 9:49:07 AM

"There are certain requirements that he must follow before such lethal force is to be used."

Requirements that can be twisted ex post.

Posted by: CK | Jun 12, 2013 10:57:09 AM

I just finished reading a book (The Black List)by Brad Thor who authors military thrillers and this kind of invasive surveillance over the country is lined out in detail and goes about defining how it could be done........of course this is supposed to be 'fiction' however, the very next day I finished reading it the news broke about it actually being done by Obama and cohorts and not only that......it's been in place for many years! The book goes on to show how it could come to serious disaster of course and how a few of bad guys of the CIA etal are doing it to wipe out the people and only a handful left etc.

Posted by: Reta | Jun 12, 2013 2:05:28 PM

Amsterdam Jews in 1939 weren't troubled by the fact that their Dutch gummint had records of their names, residences, families and religion--until the Nazis came and they were troubled.

Posted by: jimbino | Jun 13, 2013 2:13:19 PM