This month USA Today reported that the National Security Agency has been compiling and searching a massive database of Americans’ telephone call records and data mining it for suspicious patterns. NPR reported that this activity was part of the same eavesdropping program The New York Times revealed in April.
With the new revelations (which the phone companies have denied) an old debate has again reared its ugly head. Proponents of strong government say civil libertarians don’t appreciate the terrorist threat, and civil libertarians say that advocates of mass surveillance don’t appreciate the danger of a prying government.
But that trade-off between privacy and security is mythological. Giving up privacy does not necessarily result in greater security, and greater security does not necessarily require a loss of privacy.
As a country we need to move beyond this false security vs. privacy meme and craft laws that improve both — laws that take into account the changing privacy landscape, and the indisputable need to fight terrorism.
One piece of the answer lies in acknowledging how digital technology has upended our traditional understanding of privacy.
In the past, a good deal of privacy was part and parcel of physical reality. For example, when I walked down the street, if no one else was there, I could assume I was unobserved, and take the time to fix my lipstick.
But with the advent of video-surveillance cameras, this is no longer the case. A hidden camera can observe me even when I think I’m alone.
With early analog cameras, someone needed to be watching the video feed for my privacy to be at risk. It was expensive to catalog and store videotapes, and hard to go back and find interesting stuff after the fact. With digital video cameras, however, it’s cheap and compact to store the video forever. Machines assist investigators searching the videos by tagging the points where someone is moving in the frame, and eventually, perhaps, with facial-recognition software.
That’s just one example. Modern technology affects privacy in whole new ways by making information collection possible, cheap, easy, searchable, storable and aggregatable.
Practical difficulties and expense used to be the main obstacles to government invasions of privacy. As technology wears away these obstacles, the law may be the only speed bump for government surveillance to overcome. Privacy protections in the law, therefore, need to become stronger, not weaker.
Imposing legal hurdles to surveillance protects civil liberties by placing an independent judge in the loop, to check and make sure that there’s adequate cause for investigation. But it also imposes costs that prevent a government with limited resources from pursuing the most extravagant, unlikely avenues of investigation. In general, this is a good thing.
The United States legal system is based on the idea of circumscribed government power. Americans have historically believed that government will take advantage of its power, so we constrain the government’s ability to collect information about us, and we accept the price.
If those limitations interfere with law enforcement, so be it. For example, we suppress evidence in cases where the police search a suspect’s house without a warrant, even if the evidence is incontrovertibly damning. It was collected in the wrong way.
The truth is, American society would not work if we had perfect enforcement of the law. Approximately 11 million people illegally in the country would be deported. An equal number of rich, white teenagers from the suburbs would be in juvenile detention centers for smoking pot at Phish concerts.
Yet, Americans may be willing to live with a certain level of drug use and car theft, but be much less willing to allow another Sept. 11. In these cases, we want different rules that make it easier, not harder, for government to search.
Our current legal regime is set up in exactly this way. There is one set of stricter rules for spying on United States persons and investigating conventional crimes, and another set of more lax rules that allow the government to conduct surveillance for foreign intelligence and national security purposes. These laws are complex and outdated, and should be amended. But the basic scheme makes sense.
However, in order for the scheme to work, the government not only has to follow the law, but Americans have to be sure that the government can neither overuse nor abuse the information it gets through national-security surveillance. The government can’t be allowed, for example, to use the data it collects to investigate lesser crimes or under conditions that wouldn’t have justified the intrusion in the first place. Any kind of surveillance program that’s justified on the grounds of fighting terrorism should be strictly limited to those types of investigations, and be performed only with congressional and judicial oversight.
Americans need to know why the government isn’t following the few privacy safeguards that are already in place, and how it is using the information it collects. Then we can work on rules and implement technologies that allow government access when appropriate, and constrain it when it’s not. The rhetorical debate on security vs. privacy sidetracks Americans from the more important mission of safeguarding our free society against the twin threats of tyranny and terror.
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Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
