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December 19, 2014
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editorial

Dragnet: spying in the digital age


It seems the time has come to reread George Orwell’s 65-year-old dystopian novel “Nineteen Eighty-four.” The questions it raises, about a fictional world in which each person is subjected to 24-hour surveillance in an authoritarian state, seem timelier now than ever, given what we have learned about the magnitude of electronic spying by our government’s National Security Agency (NSA), not only on foreign targets, but also, as it turns out, on Americans here at home. (If you think the bulk collection of data about our telephone calls is not spying, we beg to differ.)

We believe the time has come to think deeply about our desire for security, including these questions: How much do such high-tech spying programs that are intended to protect us jeopardize our fundamental values of privacy and liberty? Will the price we may have to pay in loss of privacy and liberty be worth it?

Just for a minute, set aside your judgment of whistleblower Edward Snowden—whether you consider him a criminal or a hero. This former NSA contractor, who revealed the extent of NSA’s massive program to collect and store records of nearly everyone’s phone calls, believes that Orwell’s book is “nothing compared to what we [the NSA] have available today.” Snowden is not alone in making this connection. Federal Judge Richard J.

Leon in Washington, DC also calls the NSA’s surveillance “almost Orwellian” and “significantly likely” to be unconstitutional.
Meanwhile, the list of critics grows. Companies like Google, Yahoo, AOL, Microsoft, Apple and Facebook have asked the president and Congress to curb the surveillance.

A special panel named by the White House, the Review Group on Intelligence and Communications Technologies, has concluded that the NSA’s bulk collection of telephone records should end. Its report, "Liberty and Security in a Changing World," makes dozens of recommendations to limit NSA surveillance, increase judicial oversight, craft new requirements for transparency and update federal privacy laws.

Beyond the agency’s telephone surveillance activities—some cases blessed by orders from the top-secret Foreign Intelligence Surveillance Act (FISA) court, others not—still more revelations have come to light, including that the NSA routinely processed hundreds of millions of Google and Yahoo records of emails and Internet searches. When particularly difficult challenges have arisen, NSA’s hackers’ unit was brought in to do its work. (www.spiegel.de/international/world/the-nsa-uses-powerful-toolbox-in-effo...)

Last week the debate continued unabated following a decision by another federal judge in New York, William H. Pauley III, whose ruling stands in direct opposition to Judge Leon’s. Even though he finds that the program “vacuums up information about virtually every telephone call to, from or within the United States,” Pauley ruled the bulk collection of telephone metadata—records of everyone’s phone calls including telephone numbers, both called and received; call duration; unique identifiers and the time of the call—is perfectly legal.

This is not a debate that Americans should sit out and watch from the sidelines. At the heart of the matter is privacy and whether “hundreds of millions of innocent people can be put under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future,” as the ACLU’s deputy legal director Jameel Jaffer argued.“This kind of dragnet surveillance is precisely what the Fourth Amendment was meant to prohibit.”

If you remember your history, the Fourth Amendment came to be in the Bill of Rights of the U.S. Constitution because, as colonists, the Founding Fathers had suffered under the British authorities’ almost unlimited power to search for anything at any time, a practice deemed to have been a catalyst for fueling Americans’ revolutionary sentiments.

It might surprise you to know that the word privacy does not even appear in the Constitution, yet the genius of that founding document is that it recognized and was designed to protect our “natural rights” as fundamental principles on which our country was established, and these natural rights are universal and timeless. Over the years, the right to privacy gained legal protection, including from the Supreme Court, which in various cases derived the right of privacy from the First, Third, Fourth, Fifth and Ninth Amendments.

Today, with privacy under attack, facilitated by advances in technology that have outpaced legal and societal conventions, the Constitution can still be a tool to defend privacy. Yet resolving this matter should not be left to the courts alone; new statutory protections are needed that create genuinely meaningful oversight and accountability of America’s intelligence and security apparatus appropriate to the digital age.

The wisdom of reining in the NSA, which already has established this apparatus allowing it to spy on almost anyone, seems obvious to us. Finally, there is always the risk of the ultimate danger of unrestricted government spying, namely, that in the wrong hands this power could all too easily be used to create a police state. If you think not, we ask you to consider reading Orwell’s “Nineteen Eighty-four.”