Ask for Permission

When Judge Murray Gurfein ruled in 1971 that The New York Times should be allowed to publish The Pentagon Papers, he wrote:

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form. (Policinski)

In 2013, we are still living in troubled times.  We continue to be at war with terror, and our national security is threatened.  However our individual security is also at risk.  We all have the right to freedom of expression, yet government inspection of our personal communications threatens that freedom.  The government cannot justly take away this freedom.  The only proper means for us to lose freedom of expression is by our own decision to give it up.  If government officials believe that there is a critical need to monitor our communication, they should ask us for permission.  Any such permission that we grant should expire as soon as the crisis expires.

Now of course, we have a representative government.  The NSA does not have to poll every American in order monitor phone records.  The Obama administration claims that the Foreign Intelligence Surveillance Court (FISC) provides legal authorization for the NSA’s activities, and that Congress has proper oversight.  In theory these practices would provide the permission that the NSA needs.  

However, the FISC has been approving every request “for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes” (McCauley 2).  This court operates in secret, but it is evident that it never opposes the government’s requests.  Also, as Senator Ron Wyden said in 2012, “The public has absolutely no idea what the court is actually saying. What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted” (McCauley 6).  That is, because nearly all of the court’s proceedings are classified, we have no way of knowing the legal basis for the court’s decisions.  Anyone can read the actual text of the Patriot Act and other relevant legislation.  However, what truly matters is the interpretation and application of those laws, and these are being done in secret.  We should bring this out into the open.

Works cited:

McCauley, Lauren. "Secret Spy Court Authorizes 100% of US Government Requests." Global Research. Centre for Research on Globalization, 5 May 2013. Web. 23 June 2013. <http://www.globalresearch.ca/secret-spy-court-authorizes-100-of-us-government-requests/5334012>.

Policinski, Gene. "Freedom to Gather News at the Heart of AP Phone Debate." Newseum, 23 May 2013. Web. 23 June 2013. <http://www.newseum.org/news/2013/05/freedom-to-gather-news-at-the-heart-of-ap-phone-debate.html>.

Troubling aspects of the NSA's programs

The U.S. government has been issuing public statements that conflict with the classified documents that have been leaked about the NSA surveillance programs.  The Obama administration has stated that the NSA’s surveillance programs gather only metadata about the communications of American citizens, and that a specific warrant is required in order to dig further.  However, as Glenn Greenwald and James Ball report for The Guardian, the data collected is broader and mostly under a general court order.  On June 20, The Guardian published two classified documents approved by the Foreign Intelligence Surveillance Court (FISC) which are supposed to limit the NSA’s power to spy on Americans.  However, the documents leave open a window that “US communications can still be collected, retained and used” (Greenwald and Ball 3).  The authors detail that “inadvertently acquired domestic communications” can be retained if there is usable intelligence in them (Greenwald and Ball 9).  Even communications between attorneys and their clients, which cannot be used in criminal proceedings, can be used by the NSA to further an intelligence investigation.  This shows that NSA analysts are able to observe the content of communications.  Supposedly they are only supposed to investigate communications that have a foreigner directly involved.  However, the analysts are given a lot of leeway to determine if the target is a foreigner.  For instance, “[w]here the NSA has no specific information on a person's location, analysts are free to presume they are overseas” (Greenwald and Ball 21).  The analysts do not have to go to a court or even their own supervisors to determine if they can continue investigating a target.  Rather they rely on their own discretion

.

At this point, I am not shocked that that the NSA operates this way.  However, the leaked documents show just tidbits of valuable information that we have not been able to get from official outlets.  It is becoming harder to trust the official information that comes out about these programs.  Nevertheless, it is time for government officials with authority over the classification of this information to be more transparent. If they can give us the reasoning for their decisions, then we might give our approval of them.

Works cited:

Greenwald, Glenn, James Ball "The Top Secret Rules that Allow NSA to Use US Data Without a Warrant." The Guardian. Guardian News and Media, 20 June 2013. Web. 23 June 2013.

The NSA is not alone

The NSA's style of broad surveillance is not limited to the U.S.  In fact, the NSA is in partnership with foreign intelligence services to collect data.  The Government Communications Headquarters (GCHQ), based in Cheltenham, England, is the UK government agency for signals intelligence activities.  According to Ewen MacAskill, this agency is partnered with the NSA to gather and share “vast streams of sensitive personal information” (MacAskill 1).  Britain is in the unique position of hosting one end of many of the transatlantic fiber-optic cables that carry telephone and internet traffic between America and Europe (MacAskill 21).  Through an operation code-named Tempora, GCHQ has tapped these cables and stored content and metadata from the communications that pass through.  The collection does not distinguish between suspects and innocent people (MacAskill 5). 

The Tempora operation has been pulling in so much data that the GCHQ cannot handle all of it.  Therefore, they have shared the work with analysts from the NSA.  What is troubling is that in the legal guidance given to the American analysts, they were told “We have a light oversight regime compared with the US” (MacAskill 13).  That is, the Constitutional guarantees of privacy for American citizens, and Congressional oversight of intelligence gathering, don’t apply to this work done for the GCHQ.  The concern here is that, although the NSA traditionally does not spy on American citizens, GCHQ can do so and then share its information with the NSA.  Likewise, Brits may be concerned that the NSA could use Prism and other tools to gather information on them, and then that information can be shared with British authorities.  At this time, it is not clear whether this sort of cooperation between the intelligence agencies is happening.

The international reaction to this news is still developing.  People of other European countries have reacted with great concern and even outrage to the news of these surveillance programs.  According to Steven Erlanger, writing for The New York Times, nations that once lived under fascist or Communist dictatorships still mistrust governments (Erlanger 4). Therefore current German law “has strict limits and parliamentary oversight over the intelligence services” (Erlanger 6).  Germans expect that their personal online activities remain private.  The people are understandably upset that U.S. and British intelligence agencies have been secretly gathering and analyzing information about these activities.

 

Works cited:

Erlanger, Steven, and Jack Ewing. "Differing Views on Privacy Shape Europe’s Response to U.S. Surveillance Program." Nytimes.com. The New York Times, 14 June 2013. Web. 23 June 2013.

Macaskill, Ewen, Julian Borger, Nick Hopkins, Nick Davies, and James Ball "GCHQ Taps Fibre-optic Cables for Secret Access to World's Communications." The Guardian. Guardian News and Media, 21 June 2013. Web. 23 June 2013.

DHS Fusion Centers Show the Hazards

The revelations of the NSA’s phone and email surveillance just came out two weeks ago.  However, they are certainly not the first that we have heard of the US government monitoring its citizens’ activities.  In “The future of security? Surveillance operations at homeland security fusion centers”, Torin Monahan details the history of so called “fusion centers”, operated by the Department of Homeland Security.  These centers are partnerships between local police, the FBI, and the DHS.  According to Monahan, they conduct “surveillance of abstract data [which] may be perceived as being less intrusive and less threatening than are video cameras, wiretaps, or other technologies that are traditionally associated with surveillance” (Monahan 8).  That is, the centers do not necessarily listen in on people’s conversations.  However, they collect and store a huge amount of abstract data about those conversations and other interactions.  They can then organize that data and “paint a disturbingly fine-grained representation of individuals, their associations, preferences, and risks” (Monahan 8).  This is strikingly similar to the NSA’s collection of “metadata” about phone records.

Yet the fusion centers have been around for a while.  The first was established in 1996 in Los Angeles, with many more being formed after 2004 (Monahan 4).  The Obama administration has continued the expansion of this program.

The secrecy of these joint operations has led to abuses.  According to Monahan, “Fusion centers have also been implicated in scandals involving covert infiltrations of nonviolent groups, including peace-activist groups, anti-death penalty groups, animal-rights groups, Green Party groups, and others” (Monahan 15).  In many cases, there was no particular reason to target these groups other than the bias of the investigators.  Yet the investigation has the power to paint the target as a terrorist.  If we bring these investigations to light, we can start to put an end to the abuses and correct the wrongs they perpetrated. 

Similarly, the US government should not be so secretive about the NSA’s surveillance programs.  We need to know that any information collected and stored about Americans will only be used for legitimate criminal investigations.  The government also has to respect its citizens’ rights to freely associate with others.

Works cited:

Monahan, Torin. "The future of security? Surveillance operations at homeland security fusion centers." Social Justice 37.2-3 (2010): 84+. Academic OneFile. Web. 20 June 2013.

Let's hear more from the NSA

Recent news about the US government's actions has been rather shocking.  According to Glenn Greenwald, writing for The Guardian, "The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon" (Greenwald 1), and it is suggested that the records from other major networks are also collected (Greenwald 16).  Traditionally, the NSA's has been banned from spying on American citizens.  Therefore many people are concerned about the implications of this revelation.  According to Greenwald, the records that are scooped up are considered "metadata", which "would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where" (Greenwald 15).  Americans who value their liberty to freely associate with others, without government interference, are raising objects to this gathering of phone records.  

Additionally, The Guardian has reported on an NSA's program called Prism, "which allows officials to collect material including search history, the content of emails, file transfers and live chats" (Greenwald and MacAskill).  

Understandably, Americans desire more information about the NSA programs. People want to know how much the government knows about them, and how the government plans to use that information.  There is a natural tendency to ask "If I am not a criminal, why do you need to know who I call, or what I email?" 

Of course, the US government claims that there is a good purpose to these programs.  The director of the NSA has claimed that they have helped prevent 50 terrorist plots since 2001.  He even shared some details about four of the plots.  However, the remaining plots remain secret.  The director’s statements are also unclear on what contribution other methods had in stopping the plots.  

In the absence of detailed information about the NSA’s activities, the public is left with the information that was leaked by an NSA contractor.  This has led to widespread public speculation, but little constructive dialogue.  It is nearly impossible to have a meaningful conversation when one side claims to have a deeper understanding, but is unwilling to share what they know.  It is time for government officials to lay out more details of the NSA’s programs – not just the results, but the process it took to get there.

Works cited:

Greenwald, Glenn. "NSA Collecting Phone Records of Millions of Verizon Customers Daily." The Guardian. Guardian News and Media, 05 June 2013. Web. 19 June 2013. 

Greenwald, Glenn, and Ewen MacAskill. "NSA Prism Program Taps in to User Data of Apple, Google and Others." The Guardian. Guardian News and Media, 06 June 2013. Web. 20 June 2013