The Graduate School of Business’ CEMEX Auditorium was completely packed on Oct. 8, when former NSA and CIA Director General Michael Hayden engaged in a dialogue with Stanford scholar Amy Zegart. Hayden was primarily responsible for expanding the NSA’s infamous mass electronic data collection surveillance program in the wake of the touted “war on terror.”
For many, government surveillance is fundamentally unethical, as it imposes on our constitutional protection against unreasonable searches and seizures. However, after the passage of the Foreign Intelligence Service Act (FISA) and related laws, citizens do not receive the same constitutional protections from surveillance. Under the original provisions of President George W. Bush’s surveillance program, the NSA was authorized to monitor the phone, email, and other communications of citizens without a warrant if it is believed that he or she is associated with a terrorist. Since then, Congress has passed the FISA Amendments Act of 2008, which is limited to targeting non-U.S. individuals.
However, there are broad and well-founded concerns that the government engaged in the overcollection of domestic communications. In addition, a common argument that individuals against government surveillance voice is that the Foreign Intelligence Surveillance Court (FISC), the special court that was established under FISA, lacks transparency, as it operates out of the public view and lacks oversight by Congress.
Overall, the issue of government surveillance provokes critical questions about privacy and safety in a modern world characterized by rapid communication and mass dissemination of information. Although there is no easy solution to this issue, steps can and should be taken to resolve some of the primary contentions.
First of all, we should bear in mind the purpose of the government’s surveillance of U.S. and foreign citizens. The overarching intent of the program is to identify individuals who seek to harm us, or to get ahead of those who plan on committing unlawful acts. 9/11 and militant groups such as ISIS and al Qaeda serve as constant reminders of threats to the homeland. They are no joke, and hence, we should enforce measures to defeat them.
Although government surveillance is a manner of countering such threats, it is vital that the government not wholly overstep its boundaries. Yes, it can and should conduct surveillance, but it should have more limits and restrictions. Currently, there are concerns that the government is collecting information that goes beyond just terrorist threats and that the bulk data collection is “unbounded in its scope.” As such, the government should address and strive to resolve such concerns and ensure that it is truly just targeting potential sources of assistance to intelligence activities.
Furthermore, there should be general accountability for and regulation of the FISC, specifically by the Department of Homeland Security, which was previously ignorant of the FISC and the NSA’s program up until Edward Snowden’s revelations. No one court or branch should be allowed to operate in complete secrecy, as it violates the institutional structure of our democracy. Nonetheless, the public itself should not know the details of FISC’s proceedings, as it would defeat the purpose of even having intelligence programs. Overall, however, it is vital that the Department of Homeland Security and the Homeland Security Committee enforce more robust oversight of the FISC in order to curb further abuses of its power. The CIA’s admission of spying on the Senate Intelligence Committee is a clear example of abuse.
Being a global power inevitably opens us to dangers from individuals who seek to destroy our institution. In order to protect it, we may need to sacrifice some privacy. Nonetheless, we should not remain complacent about the issue, even if we are in favor of sacrificing some privacy for the sake of the country’s welfare and safety. Congress should take measures to ensure that information collection is justified and that there exists accountability for the respective bodies performing the surveillance. The issue of government surveillance will persist as long as the threat exists, but there are questions that are worth pondering: Does the goal of protecting the homeland outweigh the cost of invasion of privacy? Should individuals be able to consent before the government collects data on them? Are the data collected adequately protected? Has the program been successful in achieving its objectives? For now, they jury is still out.
Contact Veronica Anorve at vanorve “at” stanford.edu.
Back in 1738, Benjamin Franklin gave colonial citizens a great piece of advice: “Sell not virtue to purchase wealth, nor Liberty to purchase power.” He wasn’t alone in believing liberty is much more precious than power; the men who laid the legal foundations for this country agreed, as have many great political thinkers of the past 238 years.
The 2000s changed that. We as a society seem to have forgotten Franklin’s maxim after the collective trauma of September 11th. We wanted the power to enhance our security against terrorism, so we established the TSA and adopted the USA PATRIOT Act, giving the federal government vast new powers to “improve” our nation’s security. Doing so set a new precedent for the federal government—leading, in 2007, to the PRISM program.
PRISM is a National Security Agency (NSA) program that officially enabled them to spy on us via our various communication accounts at Facebook, Google, Verizon and others. Under the aegis of PRISM, the NSA either demanded or tacitly collected data about users without the specific warrants legally (and morally) required for such seizures. Targeted users included those in the U.S. who at least sometimes communicated with people abroad and any user in a foreign country (regardless of their U.S. citizenship status).
In the name of fighting terrorism and securing our homeland, we ceded what we thought was a little bit of liberty to the federal government; they then took quite a bit more of our freedom than we bargained for.
Certainly, security is important—whether at the individual or the national level, we have a right and a duty to protect ourselves. One of the few things a government must always do is defend the citizens it serves from existential threats. At times, that does require the government to restrict certain specific liberties for definite amounts of time (e.g. imprisoning criminals). Failing that kind of protection, governments fall, and the people rise up to “provide new Guards for their future security.”
But that security doesn’t just encompass the physical security provided by the government via the Armed Forces. Our Founders and Framers gave us a much better concept of government designed to take that idea of security a few steps step further—a government tasked, first and foremost, with defending the freedoms of the people it serves. The Constitution we follow makes this the literal basis for our federalist government.
Ethically speaking, our system makes it so that the rights and liberties of every person protected by the Constitution are and must be sacrosanct above all else. While those rights most obvious to us today include the freedoms of expression and religion protected by the First Amendment, “the right to be secure in [our] persons, houses, papers, and effects, against unreasonable search and seizure” that the Fourth Amendment protects is just as important. For anyone to violate such liberties is inherently immoral (in other words, evil), and for the federal government to do so is inherently tyrannical.
People who support such tyranny argue that the costs are worth the “security” that comes by violating our inherent rights. With PRISM and Big-Brother-esque surveillance in general, they say that federal monitoring of ordinary citizens via data collection (without the warrants specifically mentioned by the Fourth Amendment) allows the government to stop terrorist attacks before they happen, since having information on everybody means that they have information on terrorists in addition to innocent citizens. Many even claim that we haven’t had a terrorist attack on U.S. soil since PRISM’s inception thanks to such radical seizures of data.
Despite those claims, we have, in fact, had attacks on U.S. territory since 2007—like Fort Hood in 2009, our embassy in Benghazi in 2012 and the Boston Marathon in April 2013. The attempted Christmas bombing in 2009 would also have made this list if the jihadist’s underwear bomb hadn’t malfunctioned. To put this into perspective, Edward Snowden didn’t even start copying the documents that would expose PRISM until May 2013.
Clearly, violating our basic rights has not even given us a modicum of extra security against terrorism, Islamic fundamentalist or otherwise; if that violation had actually given us more security, then surely we would not have been attacked again. As such, no utilitarian justification for PRISM can make sense. But there’s a deeper ethical absolute that matters in this case. Simply put, no gained amount of real security is enough to justify a loss of liberty as total and permanent as what PRISM entailed.
Thankfully, we live in a post-Edward Snowden world: we now know a great deal about what the NSA tried to hide from us during the six years that PRISM remained top secret, and that knowledge can be power. We know how the federal government has wronged us, so we can now affect positive change to stop those wrongs from happening again. We can fight back.
Contact Johnathan Bowes at jbowes ‘at’ Stanford.edu.