Tuesday, December 3, 2013

Liberty versus Security: Does Privacy Trump the NSA Collecting Metadata?

Edward Snowden leaked various documents from the National Security Administration (NSA) back in May 2013, which made Americans realize the extent of NSA surveillance that was done in the name of national security. Some have called Snowden a hero and a whistleblower, and others a traitor. Ever since, the NSA has been under scrutiny for overreach of its surveillance. Congressman Jim Sensenbrenner (R-WI) is at the helm of NSA reform, and is trying to pass the USA Freedom Act (H.R. 3361) in hopes to curtail NSA surveillance and to bring transparency to the process. This brings us to determining whether there can be some reasonable tradeoffs made between security and privacy, or if Benjamin Franklin was correct in asserting that "those who surrender freedom for security will not have, nor will they deserve, either one."

Let's address the standard argument of "if you have nothing to hide, why worry?" Let's start off with a need for privacy. Freedom is a vital part of a democratic society. We should be able to develop our ideas, personalities, beliefs, and lives without fear of government intervention or oversight. The vast majority of people in the developed world have a deep desire to keep aspects of their life private (that includes Facebook), even when that information or what they have done is moral and righteous. For argument's sake, let's give the NSA a benefit of a doubt and assume the information is used strictly for national security reasons, and the information gathered is not leaked. Even so, it still ends up being an invasion of privacy because the information is extracted without an individual's consent. Some famous Supreme Court cases dealing with the issue of privacy include Griswold v. Connecticut, Roe v. Wade, Cruzan v. Department of Health of Missouri, and Lawrence v. Texas. The right to privacy is also implied in the First, Third, Fourth, and Fourteenth Amendments. Furthermore, given all the laws and regulations on the books, even if you think you are not violating something, there are so many criminal laws that you very well are without knowing it, and the NSA could easily exploit obscure laws as a justification to spy on anybody and everybody.

Proponents of NSA surveillance might opine that data mining of phone records, like that of Verizon, is harmless. Before determining whether it is innocuous, we should ask what sort of data is being mined. The NSA is not listening in on phone conversations and acquiring the content of those conversations, which is a good thing, mind you. However, they still know who you called, how long the call lasted, and the location of where you made the call. If the information was so "useless," like proponents state, then why collect it in the first place? From this metadata, the NSA can glean information about people's relations, beliefs, and activities, which, once again, is private information unless the NSA obtains a warrant and extracts the information with due process.

There is little to no evidence that extracting warrantless metadata works (It very well could have just been used to foil one plot, and even in that one plot, using PRISM was unnecessary). Such surveillance makes us less safe, and furthermore, it is also estimated that using PRISM will cost US cloud computing industry up to $35 billion over the next three years. And this does not even take Bullrun into account, which was a highly classified NSA program that allowed the NSA to hack into targeted computers and catch encrypted messages before being encrypted.

There are other ways of gathering intelligence without warrantless data extraction. There is a reason why our government has a system of checks and balances, and warrants are a check on the government to make sure they do not abuse their power. With the development of technology, it is easier than ever for the government to spy on its citizens without us even knowing it, which is why there needs to be oversight (e.g., increased inspections) and transparency. If the government is to be entrusted with national security, it needs the trust of the people. Engendering reform and requiring warrants for metadata is the very sort of oversight that provides accountability, as well as avoiding the erosion of the confidence of the people and the social contract. Liberty is much more fragile than security. Even after a terrorist attack like 9/11, the American people showed that they can overcome it, rebuild, and move forward. If liberty takes a hit like that, it is significantly more difficult to recover that liberty.

The odds of an American dying in a terrorist attack is one in 3.5 million, which is really low compared to other causes of death. Considering the improbability of a terrorist attack, we should ask ourselves if throwing away vital liberties is worth preventing such a statistical improbability. There are ways the government can acquire information without resorting to warrantless searches, and I sincerely hope the government can implement methods to gather data and intelligence without violating the Constitution and trampling our right to privacy.

12/12/13 Addendum: The President's NSA review panel recently published this report on NSA reform. Let's hope there is some follow-through.


  1. These would be my rules for the NSA and intelligence agencies in general:
    - Have a warrant. I'm not asking for a particularly high standard on this, but someone must sign off on the taps and metadata collection.
    - Have records of everything: who ordered a tap, who performed it, who gave the warrant.
    - Metadata must have a warrant for every node. One warrant lets you gather on an American and see every foreign contact, but any American contacts would be left anonymous until the NSA had a warrant for that one too. Again, I'm not asking for a high standard on the warrants, but there must be tracking and accountability.
    - Anyone caught using NSA resources for private matters or for illegal spying is immediately fired and brought to court. If they try to blackmail the government to get away, they disappear. That includes contract workers. Soldiers are held accountable (to some extent) for killing innocent civilians on purpose, why should agents not be held to a similar standard?
    - I'd have all agencies, including the NSA, provide estimates of lives saved per dollar spent. These would be declassified.

    1. Those are very good rules. If those were actually applied to intelligence agencies, national security would be much better off.

    2. The problem with new reforms is the NSA has already broken existing law, and that happened without consequence. Are we to be satisfied with new laws when they may again decide, on a whim, the laws do not apply to them?

      And oversight? Despite their protestations now, we know members of Congress knew of these programs before the Snowden leak. What good is oversight without complete transparency?

      And, of course, if these programs aren't actually stopping terrorist attacks, why should we allow the NSA the power to keep running them? Surely their stated good intentions--or our intuitive but unproven beliefs about the importance of such programs--shouldn't factor in to that decision.