by Gigi Alford
Program Officer, Internet Freedom
and
Ilana Ullman
Program Associate, Internet Freedom
Almost as troubling as the recent revelations about the U.S. government’s sweeping collection and analysis of the personal information of law-abiding internet and phone users are the inadequate “just trust us” response to the outrage and the administration’s lack of decisive action to regain the faith of a tense American public and wary netizens abroad.
Under the U.S. constitution, citizens are guaranteed protection from unreasonable searches and seizures by their government. Violent events, such as the Boston Marathon bombings, leave no question about the serious need for strong security measures. However, maintaining an appropriate balance between security and privacy requires constant public vigilance. Any state surveillance of personal communications is an intrusion into the private domain. While exceptional circumstances may render this intrusion necessary and justified, it is only permissible when associated with a targeted investigation, conducted according to a court-supervised and transparent process, and guided by fundamental human rights principles. Freedom House outlined its views on this subject last week in its oral statement at the UN Human Rights Council session on freedom of expression.
Unfortunately, it appears that the requirements for permissible surveillance were not met in the instances of secret U.S. court orders that have recently come to light—both the large-scale seizure of Verizon customers’ metadata and the secret internet data collection operation code-named PRISM—which appear to involve incredibly broad data gathering and storage by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).
These examples raise concerns that current legal and judicial protections are no longer sufficient to prevent government spying from creeping into the private lives of law-abiding individuals. Technology has evolved significantly, with new applications and means of communication being developed on an almost daily basis, including new modalities for surveillance. These changes demand public debate and consensus on new limits and laws to prevent the abuse of novel technologies.
It is unsettling that the evidence that has surfaced of late appears to contradict past and current statements and sworn testimony by government officials, including Director of National Intelligence James Clapper’s testimony before the Senate Intelligence Committee in March 2013. When asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir.… Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.” These inconsistencies damage public faith in government leaders and undermine confidence in the constitutional system of checks and balances. The administration should, without delay, work toward restoring this trust and its moral authority at home and abroad by fully explaining its current surveillance policies and their justification, including the risks and benefits. Meanwhile, Congress should hold hearings to shed more light on what has happened to date and reassess these policies for the future.
- Content vs. metadata: Much of the argument in defense of the FISA-authorized telephone metadata collection has focused on the assertion that the NSA is not listening in on phone calls, but rather capturing “metadata,” such as phone numbers, call duration, and phone location history. Metadata are ultimately personal information, which many individuals don’t and shouldn’t want the U.S. government—or any government—to vacuum up without their consent. Collecting metadata is a significant violation of privacy, as much can be inferred, whether correctly or incorrectly, about individuals’ private lives based on metadata alone, including their religious beliefs, political affiliations, social contacts, medical issues, and so forth.
A free country does not need to become a surveillance state to maintain public safety and carry out legitimate investigations of criminals online. President Obama and Congress must take a principled stand and heed public calls for a frank and unfettered conversation about what has happened and how to move forward.
This post originally appeared on Freedom House's blog, Freedom at Issue.