By R. Alan Clanton, Thursday Review Editor
(Originally published December 27, 2013):
On Friday, December 27, 2013, Judge William Pauley III, of the U.S. District Court (for the Southern District of New York), ruled that the National Security Administration’s controversial program of spying on American citizens does not violate the Constitution. In the context of a previous opinion by a federal judge which ruled against the NSA weeks earlier, a showdown on the issue is now likely before the Supreme Court.
Judge Pauley said that the Fourth Amendment does not cover individual protections from the kind of bulk data routinely collected and managed by phone companies and providers of high speed internet data. Acknowledging that the wide net cast by the NSA is inconvenient and inelegant, Pauley nonetheless cited the terror attacks of 9/11 as an example of what can happen if law enforcement agencies are not able to collect and collate crucial digital data. In his written decision Judge Pauley said that it is essential that U.S. intelligence operations be able to connect “fragmented and fleeting communications to reconstruct and eliminate al-Qaeda’s terror network.”
Events had already been moving swiftly. On Friday, December 20, President Barack Obama acknowledged to reporters that the thorny issue of Edward Snowden, the NSA leaker now being given asylum in Russia, will have to be settled “by the rule of law,” which was the president’s way of saying that he would not weigh in on the issue of offering Snowden a pardon if he chooses any form of negotiated return to the United States. In other words, whether one believes Snowden to be a whistleblower in the best sense of the word, or an outright traitor, it would not be for the president himself to decide, but for law enforcement, prosecutors and courts.
On the previous Monday, U.S. federal judge Richard Leon had ruled that the NSA’s longstanding program of data collection was unconstitutional, declaring it “Orwellian,” and days later a panel commissioned by the White House agreed that action should be taken to rein in what was arguably the most penetrative intrusion ever taken by a government against its people—a harvest of personal information so comprehensive that, in fact, it would have once been considered dystopian social fiction.
The troublesome episode, which now—on the surface—appears to be bringing to a close one chapter and opening another, began when Snowden, a mid-level computer geek working at the NSA’s headquarters, walked out with small flash drives containing a trove of thousands of documents, including some which revealed the astonishing extent to which the National Security Administration had been spying on Americans. And not just “spying” by the garden-variety definition—using warrants, court orders, subpoenas, traditional surveillance methods—but through a massive, unprecedented program begun in late 2003 in which trillions of bits of information were routinely harvested from cell phone records, land line calls, online transactions, emails, text messages, credit card activity, computer uploads and downloads, and search engine requests.
More startling perhaps to civil libertarians was the ease with which many of the companies involved gave up that data, in some cases cooperating grudgingly, in still other cases offering full support. Huge firms like Verizon, AT&T, Apple, Microsoft, AOL, Yahoo, Google and eBay willingly gave the government virtually unlimited access to the data of their customers. And until earlier this year, the scope and reach of the program had been steadily expanding as new technologies created new pipelines of information, and as ever-more people use digital technology to process data and complete transactions.
In the spring, immediately after the full extent of the NSA’s program hit the news—accompanied by a more complete understanding in the press of the huge data center the NSA was constructing in the dessert south of Salt Lake City, Utah—the spaghetti hit the fan. Traditional post 9/11 political boundaries were blurred. Many conservatives were as outraged as liberals. To some, the program seemed to confirm our worst fears about government activities and intrusions, not our best. Security hawks defended the program by reminding us that in a world where terrorists could strike anywhere, at any time, such data harvesting was a necessary adjunct to the business of protecting citizens living in porous democracies.
But around the time the young Snowden was planning his getaway to Hong Kong, we learned that the sprawling new multi-billion dollar data center in Utah would house the largest set of mega-computers and file-servers ever built, machines able to capture and cache and presumably sort nearly every electronic activity of your daily life. And in the aftermath of September 11, 2001, the prevailing logic at some of the highest levels was that civil liberties and personal privacy were secondary to national security. And besides, if you have nothing to hide, why worry if your personal activity is being collected by the government.
Then there was the reasonable parallel argument that businesses have been harvesting and collating your personal preferences and private data for years. For companies like Amazon, Travelocity and Facebook this is a no-brainer without moral consequence: algorithms once too complex to even imagine are now routinely used to determine your every move, keystroke and preference—often with chilling accuracy and skill. Big businesses, from banks to retailers to credit cards companies, have their own detailed cache of your personal data which these firms use to market services and products directly to you, or via their partners in overlapping industries of retail areas. And in a world increasingly wired for video surveillance, your exact physical whereabouts are useful not merely to law enforcement, but also to thousands of retailers who can track your purchases and preferences in real-time.
In the U.S. and many other countries, storefront, restaurant and retail video monitoring by businesses is both legal and unregulated. By harvesting the data you post on social media such as Facebook, Linked-In, My Space or Google +, these firms can map your image, store it for future reference, merge your purchasing preferences with “likes,” “dislikes” and travel patterns—all to form a digital file so comprehensive that upon recognizing you as you enter a store, restaurant of coffee shop, it can generate personalized offers, specialized discounts and reminders…in some cases, using Twitter to send these nudges directly to your phone or handheld device.
So when we learned that the NSA was already tracking us in similarly comprehensive ways, capturing, collating and storing virtually every digital footprint from our path through life, some merely shrugged and said “well, that was inevitable.”
But the question can be easily reframed: in a free society, should such comprehensive forms of data collection be considered inevitable? And should we happily, or even grudgingly, accept those conditions as merely part of life in a digital age?
Recent books on the subject have offered no easy answers, even by authors and digital social thinkers such as Jaron Lanier and Evgeny Morozov, who conclude that democratic societies have precious little time to reclaim the “value” of our digital data, creativity and personal identity—before we slip into an Orwellian age in which our every click, chat and facial tick is tracked and screened for “suspicious” activity or “inappropriate” engagement.
A few cynics question whether a government unable to construct and maintain one seemingly simple website (the Affordable Care Act exchange) could actually perform any useful task with the trillions of bits of data the NSA currently collects under its spying program. Yet, even against the context of the bitter and contentious health care debate and its subplot of a failed websites and cancelled insurance coverage, the NSA controversy continued its seemingly exponential growth. When some of the documents Snowden gave to reporters revealed that the NSA’s program of collecting phone and cellular metadata had been routinely expanded to include the heads-of-state of other countries, most notably German chancellor Angela Merkel, outrage seemed to flow in from a variety of geographic directions.
The President’s plea had been one of nolo contendere. As in his previous statements to the press, he said he had been unaware that such unbounded spying was taking place. He quickly called Merkel and assured her that her private chats, texts and phone conversations were no longer being monitored by the NSA. But serious damage to relations between the U.S. and its allies seemed likely, even inevitable.
Indeed, his own panel of commissioners had already warned that by allowing the NSA to harvest the private conversations of foreign leaders could have immeasurably bad consequences for international relations and U.S. foreign policy. How agreeable would heads-of-state of U.S. allies (on any continent) be in the future when asked to cooperate in anti-terror programs or military activities if those same leaders knew that their own cell phone or Blackberry conversations were being recorded or monitored by the most super-secret of U.S. spy operations? And would such routine spying on the leaders of nations like France, Britain, Italy or Germany have a negative impact on future economic summits and the resulting trade and monetary agreements?
That governments spy on one another is, of course, not a shock to any intelligent reader of the news—of any age. Such has been the way of the world for over one hundred years, and by the time the Cold War had reached its height in the 1960s and 70s, there was even a sense that such spying was an inevitable byproduct of the tension between two sets of ideas—those of the capitalist west, and those of the Marxist-Leninist east. But this was tradecraft. Rare indeed during those dark decades was the spying meant to reach into the behaviors and patterns of private citizens (and in the U.S. rarely without warrants or subpoenas, and rarer still without a paper trail in the post-Watergate era), and spying on foreign leaders was a tool deployed with great care and precision—for the costs were high, and the risk of fallout extreme.
Technology has changed that, enabling data-harvesting to take on a nearly automated appetite with minimal human intervention, and often with little accountability for approval or decision-making. The current brouhaha centers upon revelations that the NSA’s interests included a wide range of areas: business relationships and regulatory actions of European governments; court dispositions and government positions on antitrust activity involving U.S. companies; foreign ministries and diplomatic outreach of at least 60 countries; private texts and private phone calls by Israeli leaders; international aid organizations such as UNICEF; and a wide swath of data harvested from top government posts in Spain, Italy, Britain, Germany, Canada and France. Included in the NSA’s wide net, perhaps ironically, was private correspondence between European Union officials regarding antitrust actions against Google for their alleged manipulations of search engine data.
This goes far beyond the notion of drones capturing high-resolution images of Iranian facilities suspected of housing nuclear materials. This goes beyond tracking al Qaeda operatives in a truck on a highway near the borders of Pakistan and Afghanistan. Many of the president’s apologists have defended his reputation by pointing out that some of these programs were set in motion in the latter years of the Bush administration. Obama’s critics—both left and right—find this form of artful dodge disingenuous, at best. Candidate Obama had campaigned on a platform of international cooperation and transparency, promising to end the age of unilateralist action so embraced by so-called neo-conservatives.
Further, the blowback seems to include concerns beyond the borders of the U.S. The NSA was joined in its program of spying on foreign leaders and international regulatory agencies by its counterpart in the United Kingdom, GCHQ (the Government Communications Headquarters), which may have also been central to the wide tract of information being gathered among the European nations. Many reporters see in this an indication of specific approval and support by top White House officials—hardly the action of rogue supervisors, nor the result of NSA computer geeks with an abundance of code-writing skills and too much time on their hands.
Still, at the core of the current debate is the concern by some libertarians (of a variety of political stripes, not just liberal Democrats or conservative Republicans) that at the heart of our new technologically-interdependent world is a profound loss of privacy. If the U.S. health care website’s failure represents the limitations of a government to understand how technology engages its citizens, then the NSA’s penetrations seem to represent a less comical but surely darker view of how far governments may go—almost entirely in secret—to track our activities and movements.
Last week, during his end-of-the-year press conference, the typically unflappable President Obama was noticeably uncomfortable with his explanations and mea culpa in front of reporters. Several top-tier journalists pressed the issue of Snowden—as well as the overall issue of accountability—with persistence. But the president was not willing to take responsibility for the fiasco, nor was he willing to offer any executive direction as to the legal fate of Snowden, who now lives in Moscow.
But in the meantime (especially in the wake of the recent theft of millions of credit card accounts from Target’s retail database), many Americans are left to wonder if there are any safe boundaries left intact when it comes to their most personal data and private information.
When it comes to their government and its security apparatus, it looks now as though the question will soon be decided by the U.S. Supreme Court.
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