Grassroots Commentary

Privacy Versus Security

Bill Franklin · Jun. 24, 2013

Americans live in open society. They are free to come and go as they please in the assurance that their movements are not regulated and their interactions are not scrutinized by a government whose sole reason for existing is to serve them. That is why those in government at all levels are rightly called public servants. Their role is to serve and their service is to be public in order to be visibly accountable to those they serve. In contrast, society is the sum of private citizens with emphasis on “private.”

In a democratic republic, private citizens should know everything about their public servants, whereas, public servants should know very little about private citizens.

At least that’s the way it is supposed to work in theory.

In practice, the openness of open society is easily exploited by its enemies. At some point openness forces society to decide how much of its privacy and liberty it is willing to forego in order to secure itself from enemies. If asked, society’s willingness to trade off liberty and privacy for security would surely vary from citizen to citizen. But a universal solution must be agreeably imposed on all of society by its government, and there are no opt-outs. What is society to do, then, when government exceeds the privacy bounds granted it – arguably to protect them?

That question is at the core of the eruption that occurred last week when it was revealed by a reporter for the UK newspaper, The Guardian, that the three largest American phone companies had been ordered by a secret court to furnish the National Security Agency the records on millions of private citizens. The mission of the NSA is foreign intelligence, not domestic. Domestic intelligence is the purview of the FBI. Yet we learn that the NSA is gathering intelligence on American soil about the activities of American citizens.

It was also revealed that NSA vacuums information from the major Internet companies, which carry emails and host website visits, and it ingests information from the major credit card issuers about transactions by their users.

Thus we have the federal government gathering virtually all the important information on private citizen behavior without the constitutional due process notification that it’s being done. We are to be assured, of course, by the defenders of these practices that emails are not read and no eavesdropping on telephone calls occurs. The only data of interest, we’re told, is so-called metadata – the email and phone content “wrappers” – i.e. who phoned whom, their locations, the duration and time of a call, and the email sender, recipient, and date. Allegedly.

But it’s worth noting that recently metadata was used by the FBI to identify the IP addresses of computers in a hotel business center. The computers were the source of threatening emails sent to a Tampa socialite. Agents got the names of people who had access to the business center at the time of the emails. That led them to Paula Broadwell, whose email traffic was thereafter monitored by the FBI under a court order. Her emails revealed that Broadwell and retired General David Petraeus were engaged in an extramarital affair under the cover of her work to write his biography. His career as Director of the CIA ended shortly afterward. No charges were filed and the case was dropped. But the snooping had consequences, which we’ve since learned.

If only metadata wrappers are being collected, why then did Director of National Intelligence James Clapper recently defend the surveillance program by saying it was supervised by a “robust legal regime” and that data can only “be queried when there is a reasonable suspicion, based on specific facts, and the particular basis for the query is associated with a foreign terrorist organization.” An empty wrapper has no contents to be “queried.”

James Sensenbrenner, one of the authors of The Patriot Act, says the NSA surveillance has far exceeded the original intent of the lawmakers. The statute was intended to allow investigators to gain access to information that was relevant to an authorized investigation – something that does not justify the seizure of millions of phone, email, and Internet records of citizens suspected of no crime.

There is also a question of Fourth Amendment violations, which prohibits unwarranted search and seizure. Yet, the Supreme Court once again showed how out of touch it was when it ruled in Smith v. Maryland that privacy is foregone (and so is Fourth Amendment protection) when a person dials a phone, voluntarily giving the number called to a third party carrier so it can connect the call and bill for it.

That reasoning is ridiculous. In the digital age all of us reveal a lot of information when we make a cell phone call, send a text or email message, surf the Internet, make online purchases, and use our credit cards. In other words, third parties end up with a considerable amount of information about us. But we intend that information to remain with the third party and to be used solely for the purpose it was given. It is not to be shared, even discriminately, with others without our permission.

Today’s digital transactions are a faster and more convenient way to conduct modern transactions than the way they were conducted 30 years ago when their Fourth Amendment protection in paper form was indisputable. Are we to accept that the loss of privacy is the inevitable tradeoff for modern convenience? I don’t think so.

Notwithstanding the bone-headed thought process of the Supreme Court, the Fourth Amendment became part of the Bill of Rights in 1790 to prevent the government from invading our privacy to learn things about us without our permission. If information is in hard copy in my home office file cabinet or on my hard drive, the government can’t gain access to it without probable cause and (hopefully) stringent justification for a search warrant. The fact that the file cabinet or hard drive is somewhere other than my home should not make it any more accessible to government snooping.

Charles C.W. Cooke, a British national, has written an excellent essay for the National Review Online detailing what happened in his country as civil rights and privacy was chipped away a bit at a time after World War I all in the name of security. The article is entitled Liberty in the Tentacular State and I urge readers to click on this link to access and read it. Among many useful tidbits showing how the US is going down the same path as his country, he also mentions that …

The FAA predicts that by the end of the decade, 30,000 drones will patrol the air, many equipped with high-definition cameras that can recognize a face from five miles away … If you are concerned about the government’s collecting metadata, imagine what flying squads of law-enforcement vehicles will do.

I resent the Big Brother cameras on traffic lights. I know, I know. No cause for concern unless I run a red light, something I’d not likely do unless it’s 4 am and there’s no traffic to be seen in any direction. Let’s just admit to their real purpose. Revenue generation. But could they be used for untoward purposes? You bet they could. With enough of them, the vehicular traffic of a city could be snooped on.

There are traffic cameras along the interstate as I drive home. Allegedly their purpose is traffic management. Surveillance cameras in parking lots and under the eaves of buildings stare down at me ostensibly for safety. Speed monitors are becoming ubiquitous in neighborhoods to light up flashing warnings that I’m exceeding the speed limit. Like a bunch of compliant cows we’ve come to tolerate the most intimate groping of the TSA, told that genital examination is the only way to assure flight safety. Cooke is correct. Like his country, Americans are tolerating the loss of privacy bit by bit, slowly reversing roles with the state. In time it will be the citizens who are servants and the state will become the one served.

Last week amid the mounting backlash from yet another example of how cheaply Obama holds civil rights, he vented his frustration. In loco parentis he whined, “Nobody is listening to your phone calls … You can’t have 100% security, and also then have 100% privacy and zero inconvenience.”

This is classic Obama-speak. His is a binary world of false choices in which it’s this or that but not both. And, of course, the “this” and “that” are always at the extremes. Who among us really expects “100% security” or “100% privacy”? Those are standard issue “straw men” which Obama uses so often to defend his infallible decisions. As for “zero inconvenience” I’m willing to take off my shoes even though I believe it’s idiotic, but I don’t want some TSA creep’s hand near my crotch.

Obama concluded his pontification by saying, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.” You mean problems like IRS audit abuses, the DOJ “no contact” investigation of Fox News reporter James Rosen, and the AP document seizures – all in violation of First Amendment rights?

Our trust of government was certainly not helped when Senator Ron Wyden (D-OR) asked Director James Clapper if the NSA collects “any type of data at all on millions or hundreds of millions of Americans?” and Clapper responded, “No, sir.” That was a lie under oath. Will Clapper pay a price for it? Nope.

Senator Mark Kirk (R-IL) questioned Attorney General Eric Holder in one of his endless appearances before congressional committees, this one the Senate Appropriations Committee. Holder was asked if the NSA spied on members of Congress.

Mr. Attorney General, I want to take you to the Verizon scandal and – which I understand takes us to possibly monitoring up to 120 million calls. You know, when government bureaucrats are sloppy, they’re usually really sloppy. Want to just ask, could you assure to us that no phone inside the Capitol were monitored of members of Congress that would give a future executive branch, if they started pulling this kind of thing off, would give them unique leverage over the legislature?

Holder evaded, “With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss that issue. I’d be more than glad to come back in an appropriate setting to discuss the issues that you have raised.”

Kirk formerly was a naval intelligence officer. So he put the squeeze on Holder saying, “I would interrupt you and say the correct answer would be to say no, we stayed within our lane, and I’m assuring you we did not spy on members of Congress.” After all, if NSA hadn’t spied on Congress, it’s easy enough to say so. If NSA had spied, a secret hearing would be needed to explain why.

The leak that blew the lid off of the NSA dragnet came from a 29-year old contractor, Edward Snowden, who said the original surveillance programs were narrowly framed. As they expanded to target the communications of “everyone” and store them, because “it’s the easiest and most efficient” way to achieve NSA’s ends, he went public by allowing himself to be interviewed by Glenn Greenwald, The Guardian reporter who scooped the story.

Greenwald said, “unfortunately, since the government hides virtually everything that they do at the threat of criminal prosecution, the only way for us to learn about them is through these courageous whistle-blowers …”

I’m not going to say Snowden was courageous or a whistle-blower. He took an oath, which he broke, and in blowing the NSA cover he didn’t say there was wrong-doing. So he isn’t a whistle-blower.

But as Cooke pointed out, the state is able to know a lot about citizens but citizens aren’t able to know what the state knows about them or even that the state knows it. Government, more particularly the Executive Branch, has seized the right to classify anything, preventing its activities from being known. How can government be accountable to the people if its actions are secret? It can’t. How can the people regulate what the government hides by classifying it? They can’t.

But it’s worse than secrecy. Beyond the reach of the people is a metastasizing administrative apparatus of unelected officials accountable to no one yet able to create regulations that limit the rights of every American citizen. Congress is no longer the sole creator of laws. These agencies effectively govern by regulations that are every bit as enforceable as law. The administrative state is usurping the legislative and judicial functions. It’s far more likely that a citizen will be found in violation of a regulation, and penalized accordingly, than to be in violation of law and penalized for it.

These agencies and their kudzu-like regulatory machinery sullenly tolerate elected representatives, knowing that long after each elected administration is gone, they will remain. Elections means less each time an agency is created, and no president has created more of them than Obama, particularly with his healthcare “reform.”

In January the Pew Research Center reported a survey that showed for the first time a majority of Americans – 53% of them – believe the federal government is the greatest threat to personal rights and freedom. A Rasmussen poll showed 57% believed the NSA data will be used by government to go after political opponents. Over 50% are opposed to the NSA program as the way to fight terrorism.

So, returning to the question at the beginning of this post, how do we defend our liberty and protect the American people at the same time?

We have likely fought the last war that involves battle lines, uniformed troops, and opposing armies. We fight shadowy enemies with no central command who are willing to die in every confrontation as long as they can inflict more damage on us than they suffer. To connect the dots of impending attacks, there have to be dots. And like it or not, dots include intrusive data collection and analysis at least at a high enough level to know where to drill down for more data. The intelligence work that could have prevented the Boston bombers was awful; but it’s undeniable that the bombers were caught because there were surveillance cameras.

The war of terror may be waged without armies or central command, but it can’t be waged without communication – which is almost always cross border communication – and that must be monitored. If we are to remain free, we must first be secure. Our concern should not be that data points are collected which may match up with a data point from a bad guy. Our concern should always be that those collecting and using data points never abuse them.

Simply saying “trust me,” as Obama naively suggests, is not a good enough system of checks and balances. The IRS and DOJ scandals amply showed how “trust” works when a government agency is involved.

But there is a method that could work to stop government abuse of its power. Offer any whistle-blower a reward for prosecutable wrong-doing. I’m talking rewards of a million or more dollars – enough to slake the greed of even the most steadfast agency loyalist to turn in anyone who is abusing their responsibilities. Then throw the book at the person who is convicted of wrong-doing. Hard time in prison. If every government official knew that every government employee could turn them in and collect a hefty reward, they would be less inclined toward wrong-doing. The Eastern bloc countries made this work during the Cold War. Every citizen became a potential government spy and alerted the Stasi if they saw something untoward.

Snowden would never have collected a reward because he disclosed no wrong-doing. But there is little doubt that Lois Lerner is guilty of a crime and should have been turned in years ago. She should now be tried and sent to prison. If she gets away with no punishment, it sends a signal that whistle-blowing will get you nothing, if not demotion (think Greg Hicks at the State Department regarding Benghazigate) and no one but low level employees will ever take a fall.

A variation of this method has worked in stopping software piracy. Turn in your company if it is stealing software use. The method also works in getting people to turn in IRS taxpayer cheats. I think it’s worth trying in government agencies.

NSA would be a good place to start. Immediately.