Radio Lora, February 9, 2015 und Alternative Radio
University of Oregon, Eugene 16 October 2014
Nadine Strossen is professor of law at New York Law School. She served as president of the American Civil Liberties Union from 1991 to 2008 and now sits on its National Advisory Council. She was twice named one of “The 100 Most Influential Lawyers in America” by The National Law Journal for her work on constitutional law, civil liberties and international human rights.
We face burgeoning surveillance technologies, which the government and business are using to gain ever more information about us and hence ever more power over us. For me, humor is a saving grace, so throughout my talk tonight I’m going to share some of my favorite editorial cartoons about tonight’s topic.
To illustrate our multi-faceted, what many of us are calling surveillance society, let me cite a cartoon that’s especially apt here on a university campus. It shows Janet Napoletano, who, of course, was Secretary of Homeland Security and last year became head of the University of California. The cartoon shows her in this new role meeting with a deputy. And she says, “Between data mining, DNA searches, and Internet surveillance, we know what every student will study and how well they’ll do before they’re even born,” to which her deputy responds, “So, no need for grades. We could save some bucks by firing all the professors.” As a professor, that gives me yet another reason to oppose pervasive surveillance.
Let me mention just a few more types of surveillance technology and programs that the ACLU and our allies have been working to curb, many of which we’re working to curb right here in Oregon as well as around the country: drones, cellphone location tracking, GPS tracking, license plate readers, the U.S. Postal Service’s photographing of all mail, the NSA’s collection of address books and contact lists from email, the NSA’s collection of millions of faces from Web images for use in facial-recognition programs, and the CIA’s collection of business records regarding our international money transfers. The surveillance that has understandably provoked the most concern is the NSA’s suspicionless spying on the phone and Internet communications of every person in this country, not to mention people all over the world, even if we aren’t suspected of any wrongdoing. A group called Liberty Maniacs is selling a T-shirt with the NSA seal and the following slogan. “The only government agency that listens to you.”
Thanks to Edward Snowden, we know infinitely more about this spying than we could have learned in any other way, given the government’s excessive secrecy, not to mention lying. Even members of Congress and judges who were supposedly overseeing and checking surveillance were in fact kept in the dark about these programs. Senator Wyden played a key role in calling attention to this problem, too. As a member of the Senate Intelligence Committee, he knew that the NSA was spying on innocent Americans and lying about it to Congress. He honored his duty to preserve the confidentiality of what he had learned through his committee position, but he did everything short of breaching that duty to force the NSA to come clean.
That culminated in the now infamous exchange that Senator Wyden had with James Clapper, Director of National Intelligence, during a Senate hearing last year. When Wyden pressed Clapper about whether the NSA was engaging in false surveillance of our communications, Clapper said no. After the Snowden revelations confirmed that this was a flat-out lie, Clapper dissembled yet again, as you will recall. He said this was the “least untruthful” answer he could give. That is the very kind of disinformation that Wayne Morse so strongly decried while he was in the Senate. In words that, sadly, describe our current situation, Morse denounced “fiction, propaganda, concealment, and a shroud of government secrecy, all of which withhold the facts from the public that deserves them.”
We still don’t know the full truth about the full scope of government surveillance of us law-abiding Americans, but, again, we do know infinitely more now than we did before Snowden’s disclosures. He stepped in when all other supposed oversight mechanisms had failed. In fact, that dramatic exchange between Ron Wyden and James Clapper was what Snowden called his breaking point. Let me quote Snowden. “Seeing the director of national intelligence lie under oath to Congress meant for me there was no going back. It brought the realization that no one else was going to do this to honor the public right to know about these programs.” So I consider Snowden a whistleblowing hero. (Applause) That’s a refreshing change. I can’t tell you how often I’ve been booed and hissed when I’ve said that. Not everyone shares that view.
I’d like to cite another editorial cartoon. It shows an angry NSA agent pounding his fist and exclaiming, “Snowden secretly stole private information using the excuse that he was protecting the American people. Who does that traitor think he is? Us?”
Let me now outline what we now know about the NSA spying on our communications, thanks to Snowden.
First, since 9/11 the NSA has been collecting so-called metadata about all of our domestic phone calls within the U.S.: the numbers we call, the numbers we receive calls from, when and where the calls were made, and how long they lasted. I want to stress something that I think too many Americans don’t realize in light of all the protests to this program after Snowden’s disclosure; namely, this program is still proceeding full speed ahead. To this day the NSA has continued to collect all of this information about all of our phone calls. Yes, the ACLU and our allies have been working hard to curb this dragnet surveillance in both Congress and the courts, but we have not yet succeeded.
Second, NSA also had been collecting the same metadata about emails and other online communications until 2011, when it dropped that program in response to pressure from Ron Wyden, who had forcefully argued that this unduly intrusive program was also ineffective. Both of these dragnet surveillance programs of telephone and online communications were based on a misinterpretation of the PATRIOT Act, Section 215, a reading that is completely inconsistent with the statutory language and has therefore been denounced by many members of Congress who voted for the PATRIOT Act, including Republican Jim Sensenbrenner, who describes himself as the author of the PATRIOT Act.
Third, in programs that directly target international communications and non-Americans, the NSA also has been sweeping up countless communications in which Americans participate and directly accessing the content of those communications. This program is based on the FISA Amendments Act, Section 702. This summer the Washington Post ran a chilling exposé analyzing a huge cache of actual communications that had been intercepted under 702, provided by Edward Snowden. The chief author of the Washington Post piece was the respected national security journalist Barton Gellman. His piece said, “No government oversight body has delved into comparably large samples of what the NSA actually collects not only from its targets but also from people who cross a target’s path, even tangentially. The upshot? That the intercepted communications far more often came from ordinary Internet users, including Americans, rather than legally targeted foreigners, in fact, shockingly, at least 90% of the time.” Snowden explained that he released these intercepted communications as the only way to meaningfully assess the costs and benefits of Section 702 surveillance.
I’d like to quote Bart Gellman’s description of communications by innocent Americans that the NSA has collected under Section 702 based on having actually read the sample. “Many,” he says, “have a startlingly intimate quality. They tell stories of love and heartbreak, illicit sexual liaisons, mental health crises, political and religious
conversions, financial anxieties, and disappointed hopes. They include medical records sent from one family member to another, pictures of infants and toddlers in bathtubs, and photos of men showing off their physiques and of women modeling lingerie. All this in the government’s database.” In short, it blatantly offends privacy and free speech for Big Brother to snoop on what we say, the content of our communications under Section 702.
But government collection of metadata under Section 215 is also, to quote one official, “very, very intrusive.” Ironically, the official I’m quoting who said that is Vice President Joe Biden, speaking while he was still in the Senate and critiquing the Bush administration’s collection of metadata. Compounding the irony, Senator Barack Obama was one of the leading champions of reining in NSA surveillance, a major supporter of Ron Wyden’s efforts. Recall that the slogan for Obama’s first presidential campaign was, “Change we can believe in.” As one wag quipped, the administration’s new slogan apparently is “Beliefs we can change in.”
About the intrusive nature of metadata, let me quote the ACLU’s brief in our pending legal challenge to this program, which in turn quotes one of the nation’s foremost computer experts. “By aggregating metadata, the government can learn our religion, our work habits, the number of friends we have, our civic and political affiliations, the rise and fall of our intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger, and the identities of a prospective government whistleblower and an anonymous litigant.” All of this was well captured by another editorial cartoon. This one showed a Congressman who is defending NSA collection of metadata on the ground that metadata is less revealing than content. In the next frame an NSA official approaches him and says, “Congressman, I see here that Friday you talked to your wife, then called an escort service, and then a hotel. Of course, we don’t know the content of those calls.”
Even beyond the dragnet communications surveillance programs I’ve already described, there is at least one more such program whose details haven’t yet come to light. It’s based on an executive order that Ronald Reagan issued in 1981, which authorizes surveillance of the content of communications intercepted on foreign soil with virtually no limits or oversight. It was designed for communications between non-Americans, but now it also sweeps up countless American communications, given technological changes since 1981.
To explain why, let me quote someone who worked for the State Department until earlier this year, John Tye. Last summer he wrote a blistering op-ed about this dangerous, essentially secret surveillance power. The title of his piece says it all: “Meet the executive order that lets the NSA spy on Americans.” Here’s his explanation for why this executive order now sweeps in American
communications. “When this executive order was issued”—again, 1981—“most communications by U.S. persons stayed inside the United States, but today U.S. communications increasingly travel across U.S. borders or are stored beyond them. Most purely domestic communications are likely to wind up on servers in Brazil, Japan, and Britain.” Ominously, Tye made the following warning: “Based in part on classified facts that I am prohibited by law from publishing”—remember, he was in the State Department—“I believe that Americans should be even more concerned about the collection and storage of their communications under this executive order than under the PATRIOT Act.” So more to come in terms of shocking revelations. I’m warning you.
Now I would like to rebut the two major defenses that the administration has offered for its sweeping communications surveillance: one, that it has saved lives; and, two, that it is subject to oversight by the special so- called FISA Court, named after the Foreign Intelligence Surveillance Act. The first point has been roundly rejected by many experts, including the president’s own privacy and civil liberties oversight board. Let me quote the report that it issued in January. “NSA’s bulk collection program has shown minimal value in safeguarding the nation from terrorism. Based on the information the government provided to us, including classified briefings and documents, we have not identified a single instance in which the program made a difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
The government’s other major defense for the government’s massive surveillance is that the FISA Court provides oversight. But, in fact, that court functions more like a rubber stamp for the government than an independent court. Among many other limits, it operates completely in secret and hears completely one-sided arguments, only from the government. Thanks to one of the ACLU’s cases under the Freedom of Information Act that we won in court, we learned last year that the FISA Court has repeatedly rebuked the NSA for repeatedly misleading the court about its bulk surveillance programs and for repeatedly violating FISA Court orders that have tried to impose some modest limits on that surveillance. One FISA Court judge actually resigned in protest over the dragnet surveillance programs and testified in Congress about the court’s inability to provide any meaningful oversight.
To put those harsh judgments by FISA Court judges in context, you should note that the FISA Court has been critiqued because of its strong pro-government tilt. So it’s especially troubling that even this court still concluded that the government had not only violated the Constitution and court orders, but also lied about its actions. This repeated government lying about surveillance is an aspect
of the government’s excessive secrecy. The government has too often been providing either no information or else misleading or false information, not only to we, the people, but also to the handful of members of Congress on the intelligence committees and to the FISA judges, who are supposing to act as watchdogs in our stead.
On this point I’d like to share a telling insight from Jameel Jaffe, who is the ACLU’s head lawyer in challenging undue NSA surveillance. Jameel’s insight refutes both of the government’s defenses, that the surveillance has saved lives and that the FISA Court exercises meaningful oversight. Thanks to some successful Freedom of Information Act lawsuits, we’ve recently seen some of the FISA opinions that authorized this surveillance, which in turn quote the government’s arguments. So Jameel compared the government’s arguments in the one-sided secret proceedings before the FISA Court with the government’s arguments in the regular federal court system in which the ACLU and others have been challenging the surveillance post- Snowden.
In the FISA Court the government made extravagant claims about the supposed necessity and efficacy of this surveillance. For example, it said this surveillance was the only effective means for keeping track of suspected terrorists. There’s no opponent in the FISA Court, so these bold claims went unchallenged. In contrast, now that we’re in the open federal court system, the government’s claims are subject to rebuttal by an opposing party, they are subject to meaningful scrutiny by independent judges as well as the public and press. Not surprisingly, in this context the government’s claims about the importance of bulk surveillance are infinitely more modest. Specifically, in open federal court, the government has said only that such surveillance is “one method that can complement others and can contribute to counterterrorism efforts.” Surely such a limited potential security benefit can hardly justify the huge costs to privacy, First Amendment rights, and democracy.
Not only has the FISA Court failed to exercise meaningful oversight over NSA surveillance, but the same is also true of Congress. One editorial cartoon quotes some members of Congress noting complaints that “We didn’t exercise oversight over the NSA.” And then they go on, “We allowed spying on Americans to run out of control. That was an oversight.” In that vein, my favorite comment was from the former New York Times columnist William Safire, a conservative who strongly supported privacy, as to executive abuses in the War on Terror. He said that Congress was not exercising oversight but rather “undersight.”
Now that we’ve looked at the scope of the government’s sweeping communications surveillance and its weak defenses, I’d like to spend a moment explaining why this matters. In this audience I’m probably preaching to the converted, but public opinion polls show that many of our fellow citizens are not privacy buffs, so we all constantly hear the question, Why should I care about privacy? I haven’t done anything wrong, so I have nothing to hide. Here I’d like to quote another good cartoon. It shows a worker in a hard hat sitting on a park bench saying to the man sitting next to him, “I was telling a buddy the other day, I don’t care if the government wants to listen in on my phone calls. I got nothin’ to hide.” And the other man, who is holding a briefcase marked NSA, answers, “Yes, I know.” The fallacious premise, of course, is that the only things we would want to hide would be evidence of wrongdoing. But, of course, nothing could be further from the truth. All of us law-abiding folks have compelling reasons to hide completely lawful actions and interactions, indeed, some of our most important, positive, and cherished actions and interactions, simply because they are no one else’s business.
Every few years I reread George Orwell’s amazingly prescient dystopian novel 1984, which he wrote way back in 1949. Every time I reread it I see something new. I most recently reread it about a year ago. That was the first time I focused on the fact that there were drones in that book. It’s just amazing. It powerfully demonstrates the oppression that results from pervasive surveillance, in the novel’s language, that “Big Brother” is always watching us. It shows us how this surveillance demeans our dignity and independence and destroys our relationships. It causes the very same harms that result from more brutal authoritarian tactics, such as torture and imprisonment. And, indeed, psychological studies have confirmed this.
One editorial cartoon well captured 1984’s sadly accurate forecasting of today’s surveillance society. It shows an NSA spy with a copy of this book calling his office and reporting, “We have the whistleblower in custody.”
In any event, the nothing-to-hide argument is a double- edged sword. If it’s true that you have nothing to hide unless you’re doing something wrong, then why doesn’t the government declassify everything and all of its secrecy policies? Of course, even the most ardent transparency advocate recognizes that government has legitimate secrets, for example, the names of undercover agents and battle plans. On the other hand, even the most ardent security hawk recognizes that we have egregiously excessive secrecy policies covering material with no real security risk. Too often officials hide information from the public only to protect themselves from political embarrassment.
As part of a huge, pervasive pattern of excessive secrecy, let me just mention some specific examples of the Obama administration’s unwarranted secrecy: rampant overclassification, a crackdown on whistleblowers, imposing severe restrictions on officials’ press contacts in overly aggressive leak investigations, subpoenaing reporters, wiretapping media outlets, spying on journalists’ private email accounts, and even threatening
reporters with potential prosecution, resisting the Freedom of Information Act, FOIA, refusing to disclose basic information to Congress, secret law making, and aggressive assertion of the so-called state secret privilege to dismiss lawsuits that challenge unconstitutional and illegal action in the War on Terror. The Obama administration has prosecuted more whistleblowers under the infamous 1917 Espionage Act than all prior administrations added together. In its first 92 years, the Act was used only three times to prosecute government officials or press leaks, but the Obama administration has pursued eight such prosecutions.
Just yesterday on one of the ACLU’s blogs one of my ACLU colleagues, Gabe Rottman, added to that. That number is now fairly well known, the eight prosecutions as opposed to three in all prior history. He says, “That has prompted me to look into another figure, which is less well known and potentially more dramatic. Partly because of press freedom concerns, sentencing in media-leak cases has historically been relatively light. Not so under President Obama. When it comes to sending these folks to jail, the Obama administration blows every other presidency combined out of the water by a lot. The Obama administration has secured 526 months of prison time for national security leakers versus only 24 months’ total jail time for everyone else since the American Revolution.”
Not surprisingly, this aggressive stance has chilled government sources, hence freezing access to vital information for journalists and the public, as documented in that recent ACLU/Human Rights Watch report I mentioned earlier. That conclusion is supported by even such a strong proponent of strong executive power and national security policies as The Wall Street Journal. It said that the administration is engaging in a pattern of anti-media behavior, and that its leak investigations are less about deterring leakers and more about intimidating the press.
In contrast with the administrations prosecution and punishment of those who have leaked information about illegal government conduct, it has done nothing at all to punish those who committed the illegal conduct. For example, the only person to do time for the CIA’s torture policies is the whistleblower who brought them to light. Ditto for the illegal NSA surveillance program in the Bush administration. The only person to be penalized for that was the whistleblower who told The New York Times about it and then had his life ruined with vindictive investigations. And, of course, the telecoms that illegally cooperated were retroactively immunized from all legal accountability.
On this upside-down approach, one cartoon showed the President Obama holding a press conference. He says, “Thanks to Edward Snowden’s leaks, a vast network of national security abuses was exposed. Privacy laws were broken, Congress was lied to, the Constitution violated, and public trust destroyed. Because of the impact of these disclosures, I am prepared to offer full clemency.” Whereupon, he presents a pardon to the NSA.
One persecuted whistleblower, I learned as I was preparing to come here, is an Oregonian, Diane Roark, who worked on the staff of the House Intelligence Committee and is a self-described moderate Republican. Her tale was featured in The New York Times book review of James Risen’s new book about, to quote the Times, “the shameful side of the War on Terror.” Here’s what it said about her. “Her tale is both hair-raising and representative of the post-September 11th era in which government accountability and transparency were badly eroded. When she realized that the NSA was collecting data on American citizens, she assumed that she had stumbled across a rogue operation. She asked members of Congress about it and got nowhere. She then contacted a federal judge who oversaw intelligence matters, only to have the judge report her to the Justice Department. She went to officials she knew at the CIA and the White House. Ms. Roark eventually realized that all these people had known about the NSA program and approved of it. She retired from her Congressional job and moved back to Oregon, only to wake up one morning in July 2007 to find FBI agents with a search warrant and a sealed affidavit that allowed them to comb through her house, apparently to look for evidence that she leaked data about the NSA to reporters.”
The adverse impact of the administration’s war on whistleblowers was well summarized by the following statement: “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.” Sadly, that statement came in 2009 from President-Elect Obama. President Obama has followed a similar devolution toward the Freedom of Information Act, or FOIA. The day after his inauguration, he signed a memorandum ordering federal agencies to adopt a presumption in favor of disclosure. However, dismayingly, soon after that, the Obama administration opposed a FOIA request the ACLU had made for photographs of prisoner abuse at Abu Ghraib. Worse yet, when a court sided with the ACLU, the administration pressed Congress to pass an amendment to FOIA expressly to exclude these photographs. By 2010 the Obama administration was declining substantially more FOIA requests than the Bush administration had. One cartoon on point shows an executive official pointing to a copy of the Freedom of Information Act and saying, “Freedom of Information? But it says right here it’s only an act.”
All of this unwarranted secrecy obviously is antithetical to First Amendment values, democratic accountability, and the rule of law. But there is yet another adverse impact, and that is upon national security. Of
course, the asserted justification for such secrecy is to advance national security. In fact, experts concur that excessive secrecy actually undermines security by preventing effective information sharing, thus leading to flawed intelligence. That point was underscored by none other than a former head of the whole classification system, J. William Leonard. As he said, “Government secrecy just about guarantees the absence of an optimal decision on the part of our nation’s leaders, often with tragic consequences for our nation.”
Of all of the forms of unjustified secrecy, I think the most troubling are secret laws. I still recall my shock when I first heard that term a couple years ago. Notably, that was in connection with Ron Wyden’s warnings about the government’s secret interpretation of the PATRIOT Act. And I thought, How can such a thing possibly exist in the United States? Indeed, a prominent conservative federal judge, Richard Posner, wrote, “The idea of secret laws is repugnant.” Sadly, as with so many post-9/11 abuses that at first seemed like something out of a dystopian novel, secret laws have come to seem almost routine, even though still repugnant. Post 9/11, both the Bush and Obama administrations have been relying on two major sources of secret law, which are secret not only from the American people but also from members of Congress, including even members of the intelligence committees who are supposed to be overseeing intelligence operations and who are given top-secret security clearances for that purpose. But as Senator Wyden told The New Yorker, when people ask him about sensitive national security issues, he answers, “What do I know? I’m only on the Senate Intelligence Committee.” Sad but true.
The first major source of secret law comes from the Department of Justice’s Office of Legal Counsel, which writes memos that guide the executive branch. These memos have purported to authorize a whole host of measures that are widely considered illegal and unconstitutional, including torture, the targeted killing of U.S. citizens away from any battlefield by drone, as well as the dragnet NSA surveillance. To its credit, the Obama administration did disclose the torture memos that were written during the Bush administration, but it has fought tooth and nail against disclosing the other memos, which have authorized its own controversial policies.
We did win one victory on point last spring, when a federal appeals court upheld FOIA requests by the ACLU and The New York Times for the memo that laid out the purported legal justification for drone killings of citizens. The Obama administration had cited this memo to support its claims that such killings are lawful, so the court said that it had waived any legitimate claim of secrecy. In fact, this administration and all others follow a double standard on secrecy. Officials selectively leak secret information that makes them look good while suppressing any information that does the opposite.
The second major source of secret law about tonight’s topic consists of the FISA Court opinions that have interpreted federal statutes and the constitution as allegedly authorizing dragnet surveillance. Again, the ACLU and others have been fighting for disclosure of these opinions. While some have been released, some have not. I hasten to add that these opinions should be redacted to the extent that they reveal security-sensitive facts. But what should not be kept secret is the legal reasoning that allegedly justifies the NSA’s sweeping surveillance. This is especially critical because the U.S. Supreme Court hasn’t reviewed any of these FISA Court opinions. So, to quote The New York Times, “The FISA Court has become a parallel Supreme Court, serving as at ultimate arbiter on surveillance issues.” In other words, these secret FISA Court opinions are tantamount to secret Supreme Court rulings, underscoring why such secrecy is anathema.
I want to turn to the good news, the encouraging reform efforts. I’m coming to the end of my time, and I always like to end on a positive note. Let me quote one of my favorite political philosophers, Woody Allen. As he told an audience, “I want to end with something positive, but I can’t think of anything positive to say. Will you settle for two negatives?” I do have plenty of positives. Not nearly enough concrete reform yet, but meaningful steps in the right direction on two major fronts—litigation and legislation.
On the litigation front we have won some significant victories in lower courts. And while the Supreme Court hasn’t directly ruled on the specific communications surveillance I focused on, it has issued a couple recent rulings about other forms of surveillance that strongly protect privacy rights and could certainly be the basis for positive rulings on communications surveillance.
Back in late 1983, as the Orwellian year was approaching, the ACLU sent out New Year’s greeting cards with the following message: “Happy 1984, Big Brother. The ACLU is watching you.” That makes a point that I cannot stress enough—that those of us who cherish privacy and liberty can and must turn the tables here. For every single surveillance problem, for every single secrecy problem, for every single suppression problem there is a specific solution, including specific proposed legislation, which all of you can turn into privacy- and liberty- protecting laws.
As the Supreme Court has repeatedly reminded us, we must never let our concern for security blind us to what we are actually striving to secure. During the Cold War, the Court put it this way: “It would indeed be ironic if in the name of national defense we would sanction the subversion of those liberties which make the defense of the nation worthwhile.”
But I’m going to let the very last word go not to the Supreme Court but to one last editorial cartoon, which underscores the same point specifically about surveillance.
This one features characters from the Peanuts cartoon strip. It shows Linus being completely enveloped in a large blanket labeled “Surveillance System” while a watching Snoopy thinks, “It would be a bummer to be suffocated by your security blanket.” Thank you very much.
You thought that I was sobering and giving a lot of bad news. But it was only the tip of the iceberg. This is just one of a whole constellation of privacy issues involving other government surveillance under the PATRIOT Act and under many other authorities, and also private-sector collection of information, which Chris raised from her perspective as a physician, referring to very sensitive private information, including medical records and health records and education records. Chris asked me questions about constitutional protection.
First of all, bad news for people who haven’t studied constitutional law. The U.S. Constitution, with the Fourth Amendment, which provides some protection against search and seizure, in the whole Constitution applies only to the government. We have no constitutional protection against any invasions of our privacy by private-sector entities. To say we have no U.S. constitutional protection does not mean that we cannot find other sources of protection, but we have to do that through privacy- protecting legislation. There had been such enormous public support for privacy of our data. Surveys showed in the late 1990s, when people were becoming aware of the aggregation of big data, thanks to the Internet, that 80% of the public, huge majorities from a historic perspective, supported new legislation to protect data privacy. And then the terrorist attacks occurred, and public support plummeted. We had privacy-protecting legislation. We’re so far behind many other parts of the world in this regard. The Europeans have very strong data privacy protection by legislation.
But because of the fear of terrorism, understandable fear—I was in New York on 9/11—people just were so willing to forsake concerns about privacy if they had even hope that data collection could somehow protect them against terrorism. Now, thank goodness, we feel relatively safe again, although with ISIS I think things might be changing a little bit. But there has been increased support for legislation. I know many states have passed legislation. Forgive me, I haven’t followed what’s going on here in Oregon. Legislation that protects medical privacy and health records privacy can be passed on the state level, and even on a local level, and not just a federal level. But that’s where your activism has to be when you’re talking about reining in the private sector.
The Fourth Amendment, which should prohibit the mass surveillance programs that I’m talking about, and it is under the Fourth Amendment that the ACLU, Electronic Frontier Foundation, and others are challenging this surveillance. I think it was wrong when it was issued but it’s even more wrong now—that if you turn over your data or you know that your data is going to be accessible to a third party, so you know that your telephone records, metadata records are available to the phone company, they need that information for providing the services and providing the billing—the Supreme Court held in a terrible decision that therefore you have waived any Fourth Amendment rights you would otherwise have.
Fortunately, I think that the Supreme Court—the handwriting is on the wall, from some hints they’ve given in other cases that I alluded to, that they think that digital is different, that not only the amount but the nature of information that government can collect now is such and technology has changed such that we literally can’t communicate, use our smartphones, our computers, etc., without turning information over to a third party, that’s not true consent, it’s not a true waiver. So I’m cautiously optimistic that we will get the Supreme Court to overturn that precedent.
I don’t know if I can do justice to the eloquent, witty way that Randy raised his question, which was he was harkening back to former general Dwight D. Eisenhower. Let us not forget his famous farewell address, in which he warns us about the military-industrial complex. And now we have what the Washington Post has called, in a Pulitzer Prize-winning piece, “Top Secret America,” this whole complex of secret agencies brought together under the DHS, Department of Homeland Security, that’s so secret that, as the Post has documented, they don’t even know what each other are doing. He nicely said, “Can we give them pink slips, or maybe we can have them repair infrastructure or do something else more constructive.”
Lucas asked an excellent question about the new encrypted—it’s even more than encryption—technologies, some of the cellphones which are literally going to make it impossible for any outsider to get access to them. The tech companies are responding to the NSA surveillance. They want to have a fail-safe approach that will bar any government surveillance, not only for the benefit of individual privacy, but also for commercial reasons, so that people will be willing to buy their communications technology.
Not surprisingly, law enforcement most recently, the FBI director, James Comey, gave a speech at a law school in which he said this is really going to thwart law enforcement. There is no doubt that having to comply with constitutional limits makes it harder to prosecute crimes. If we had martial law here, if we didn’t have a Bill of Rights, we could have more security and more law and order. I think that follows. I’m sure you know that in
Hitler’s Germany and other totalitarian states the private crime rate is less. But none of us would want to live in that society.
Interestingly enough, this is not just an ardent civil libertarian speaking. The whole U.S. Supreme Court has been amazingly unanimous on that point despite how fractured the Supreme Court is, 5 to 4, and even more splintered on many issues. In a very important case involving cellphone searches this term, the Court held that the Fourth Amendment requires that police officers who are arresting somebody must get a warrant before searching a cellphone incident to an arrest. All of you law students probably know that in doing that the Court was creating an exception to its otherwise general rule that you can seize property that is on an arrestee’s person incident to an arrest and you don’t need to get a warrant. It was in that context that the Court said, 9 to 0, that this is different because the quantity of information is so vast that we are going to make law enforcement go to this extra step.
Then the Court said, We understand that this is going to make enforcing the law more difficult. It went into quite a bit of detail about how criminals can depend on cellphone technology and how handy it would be for the police if they could just grab it without a warrant. I’m not going to do justice to the exact wording, but the idea was and more or less the wording that the prime goal of the Constitution is not efficiency and—this they definitely did say—“privacy comes at a cost.” Nine to zero, from Thomas to Ginsburg and everybody in between.
That said, I think it’s also helpful to think of the old- fashioned analogies. So suppose you’re just talking about somebody getting into your house. When the framers crafted the Fourth Amendment, they were concerned about the general warrants from the colonial experience, where the British agents would bash into their houses and just rummage around looking for some evidence of a crime. So the analogy to government now saying we deserve to have a back door, a key to your encryption technology would be that government officers back in the 18th century should have had a key to all of our house doors. And that just doesn’t fly.
Claire raises again the troubling issue of—it almost sounds like an oxymoron—secret law. How do you get around that, how do you bring it to light? We’ve been using the tools that we can, which are public advocacy, and persuasion. That has worked to some extent, again, thanks to Edward Snowden. After his revelations, the government decided that it would be in its best interest to release some of, A, the Office of Legal Counsel memos, heavily redacted, that provided some alleged justification for these surveillance programs, and also some of the FISA Court opinions, but very selectively. They picked and chose the ones that would highlight supposed limits on the program and protections. So then you have to use adversarial tactics, which have included bringing lawsuits
under the Freedom of Information Act and also with respect to the FISA Court. The ACLU asked the Court to exercise its own jurisdiction, that the Court, along with every other court, has inherent authority, we argued, under its own rules of procedure to release information to the public. Those cases are still being litigated. I think to some extent there is also in this waiver notion—and that’s worked quite effectively—that the more the administration feels that it has to release some of the secret laws, then it’s waiving an argument to retain the secrecy of others. As I say, we’re still fighting on it, but that is a theory that’s been persuasive.
Congress could always pass laws, and in fact, part of the USA Freedom Act reforms would include transparency for FISA Court opinions. So bringing pressure on your members of Congress to pass either USA Freedom Act or free-standing transparency law would also be helpful.
Oliver asked the question, With surveillance this massive and pervasive, is it really possible to dismantle it? It’s a very serious question. Many years ago now, somebody infamously said, “There is no privacy anymore. Get over it.” And that was when technology was light years behind what it is now. So can you put the genie back in the bottle, I think is the question. Realistically, it’s going to be hard to have complete privacy protection. I understand from talking to security experts that even with the best encryption, and even the new iPhone devices, you can still get that data through the cloud, right? So even that is not 100% secure.
But we certainly can do a lot of damage control. We can make it a lot harder for the government and for the private sector to get that information. We can put limits on the use of the information. So, for example, in the criminal justice system, it’s always been the case that if the government gets the information by violating the Fourth Amendment, it can’t use that in a criminal prosecution. We could require the destruction of the information, put a limit on the amount of time that the information can be stored by the government, we could put limits on how it can be used. So I think we’re never going to go back to the kind of privacy that existed before this surveillance technology, but I think we can do a lot better than we’re doing now.
Related programs from Alternative Radio
Ira Glasser – Patriotism, Civil Liberties & Terrorism Glenn Greenwald – Unmasking the NSA
Glenn Greenwald – The Surveillance State
Glenn Greenwald – Shredding the Constitution
Susan Herman – The War on Liberties
Deepa Kumar & Arun Kundnani – Racism & Surveillance Jeremy Scahill – The National Security Beast
Bruce Schneier – The Internet, Privacy & Power
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