Americans must judge how much privacy they’re willing to give up

Updated
By Faiza Patel
A man talks on his mobile phone as he walks through a shaft of sunlight along a street in Sydney's central business district (CBD) April 18, 2013.
A man talks on his mobile phone as he walks through a shaft of sunlight along a street in Sydney's central business district (CBD) April 18, 2013.
David Gray/Reuters

This column was written by Faiza Patel and Michael Price, of the Brennan Center for Justice. 

The revelation that the National Security Agency and the Federal Bureau of Investigation have been collecting the phone and internet records of millions of Americans should be a wake-up call. The government doesn’t discriminate between potential terrorists and ordinary Americans – it just goes ahead and collects information about everyone and sorts out whether it’s useful later. Secret courts and secret law have clearly been unable to keep domestic surveillance in check.

The leadership of the Senate Intelligence Committee, including Democrat Dianne Feinstein of California, has defended this type of bulk data collection, arguing that it is completely lawful.

This view is questionable, both in light of the words of the law and the intent behind it. The Patriot Act, passed just weeks after 9/11, granted the intelligence agencies’ a veritable wish list of authorities. Among them was Section 215, which allows the government to obtain any business record or other “tangible things” (such as phone records) if deemed “relevant” to a terrorism or foreign intelligence investigation. But it turns out the government has used this authority to sweep up information about everyone’s phone calls, regardless of whether there was a connection to terrorism. There is simply no way that such bulk surveillance of phone records could be “relevant” to a terrorism or espionage investigation without redefining the word.

The Section 215 standard was never a particularly high bar to clear in the first place, but requiring that the information be “relevant” to a specific investigation was a kind of promise that the power would not be used for dragnet surveillance of Americans. The news that this law has been used to routinely spy on millions of Americans gives lie to that promise. Sens. Ron Wyden and Mark Udall have long raised alarms about the government’s interpretation of the Patriot Act. Now, 20 members of Congress have written to the heads of the FBI and the NSA expressing their concern about “intentionally general and suspicionless collection of citizens’ private data.”

Defenders of the surveillance program make much of the fact that the content of our conversations weren’t collected. But the sheer volume of phone records acquired – on a “ongoing daily” basis for seven years – can paint an intimate portrait of the lives of everyday Americans. The government now has access to undeniably private calls to the psychiatrist or the doctor, the defense attorney or paramour, the friend, colleague, client, or source. Indeed, there are now reports that the government has also collected records of emails, internet searches, and credit card transactions.

The fact that a judge signed off on the government’s secret program is little comfort. The Foreign Intelligence Surveillance Court operates entirely in secret and its orders are classified. From the time it was established in 1978 through 2012, the court has considered almost 34,000 applications for various kinds of surveillance; it has denied a mere 11. And the number of Section 215 orders has jumped in recent years – from 21 applications in 2009 to 212 in 2012, none of which were denied. With all due respect to the judges, this winning streak is unsurprising given that the court only hears from government lawyers and any service providers who choose to challenge applications. If the court gets it wrong, no one else knows. Individuals whose communications are intercepted don’t get to challenge its rulings. Constitutional scholars don’t argue the merits of its reasoning. The public must simply trust that the court gets it right.

Protecting the safety of all Americans is every administration’s first priority, but surely the American people must be the judge of how much privacy they are willing to give up for the promise of more security. And these discussions should be had in public, not behind closed doors.

Americans must judge how much privacy they're willing to give up

Updated