What is becoming of our privacy? In the name of law enforcement and national security, the simple right to conduct our private affairs outside the prying eyes of the government is diminishing by the day. The Transportation Security Administration increasingly gives us the choice between an invasive X-ray image or even more invasive pat-downs before we board a plane. Government demands for user data from Google are up nearly 60 percent in just two-and-a-half years.
Cellphone carriers reportedly received 1.3 million requests for information from law enforcement in 2011 alone. The Obama administration has argued in court that there is no reasonable expectation of privacy in a person’s cellphone’s GPS information. Recently, Senator Patrick Leahy, D-Vt., introduced an amendment to a bill that would have provided 22 different government agencies with warrantless access to individuals’ email accounts. And last month, The Wall Street Journal reported that the National Counterterrorism Center (NCTC) has been giving “breathtaking” access to other government databases, ranging from flight records to casino-employee lists and even Veterans Affairs health records.
It is astonishing how far the government has advanced in its eavesdropping on American citizens from the Terrorist Surveillance Program initiated by President George W. Bush in the wake of 9/11. The TSP, which liberals described then as a “flagrant” violation of law, involved warrantless surveillance of communications only when at least one party was a foreign national and there was cause to believe that at least one party had an association with Al Qaeda. Bush ultimately folded TSP back into the structure of the Foreign Intelligence Surveillance Act (FISA), which is overseen by a panel of judges, but the limited scope of that program pales in comparison to the government’s investigational reach today.
This is not to say that the current administration is going too far, necessarily. The debate about civil liberties and security that has intensified over the past decade is a delicate one, and as many defenders of aggressive anti-terror tactics correctly argue, the terrorists only have to be right once to land a potentially devastating blow to our society, while the intelligence and law enforcement communities need to be right every time. That is a daunting challenge.
In the aftermath of the horrific shooting at Sandy Hook Elementary School, we can expect calls for law enforcement access to mental health records in an effort to prevent the next Sandy Hook. In the passions of the day, this may look like an attractive option, but when it comes to surrendering our liberties, we “should not go gentle into that good night.” We must not let incremental technological advancements that allow for easier access to even more private information, and legislation-by-regulation slipped into the inscrutable Federal Register, to encroach further on our privacy under our own collective radar.
It is important that an engaged citizenry demand an earnest debate about proposed advancements in surveillance capabilities by the government. The Bush administration’s constructive dialogue with Congress in 2007-08
about modernizing FISA resulted in an updated statute that balanced effectively technological advancements and the ongoing threat of terrorism in the post-9/11 world with the civil liberties of American citizens engaged in routine conversations with foreign nationals. To cite another example, fierce opposition by concerned citizens caused Leahy to withdraw his proposal to give warrantless access to individuals’ email accounts to 22 regulatory agencies (including the SEC, the new Consumer Financial Protection Bureau, the FTC and the FCC) in criminal and even in civil investigations.
Contrast these results where the public was engaged, particularly on the FISA amendments, with the recent revelation about the NCTC’s expanded access to the wide spectrum of government databases.
With no public debate, a notice in the Federal Register to get around the Privacy Act (which otherwise would prohibit the disclosure of personally identifiable information from one federal agency to another) and the stroke of Attorney General Eric Holder’s pen, the NCTC has access and the ability to retain a vast array of highly personal information about ordinary Americans about whom there is no basis to suspect any connection to terrorism or criminal wrongdoing. Notably, when a similar attempt by the government to gain access to such a large amount of private data went public in 2002, the resulting uproar caused Congress ultimately to de-fund the program.
It may well be that the NCTC — which is described in the WSJ by its own director as “still a bit of a startup and having to prove ourselves” — can demonstrate that this sensitive personal information about so many innocent Americans will yield important information that it has the capability to interpret to thwart a future terrorist attack. If so, let’s hear about it. But let’s also hear the agency’s assurances that innocent citizens will not be swept up mistakenly in painful and costly investigations, and how this information will be safeguarded from misuse for other purposes. In other words, make the case, and the public should support you.
An open debate (or at least one involving accountable elected members of Congress) on expanded governmental surveillance powers, consistent with national security needs, is especially important because the courts have not proven to be particularly effective forums to resolve the constitutional implications of this trend. There has been a lot of litigation brought by watchdog agencies, but plaintiffs have had difficulty establishing standing to sue. In Amnesty International v. Clapper, No. 11-1025, watchdog organizations and journalists have challenged the revised FISA law’s provision that eliminated the need to identify specific individuals targeted for surveillance, but the substantive issue has not been addressed. Rather, the Supreme Court heard argument October 29 only on the question of the plaintiffs’ standing. If the law is not extended and expires on December 31, as currently scheduled, the plaintiffs may lose standing for that reason even if they otherwise have established injury-in-fact.
Even where plaintiffs can establish standing, the administration has asserted the state secrets doctrine in an effort to get those cases dismissed. This occurred just last month in the federal district court in San Francisco, where the Justice Department argued that allowing a case by five California residents also challenging FISA to continue would compromise national security.
However, in the law enforcement context, where cases resulting in criminal charges present opportunities to challenge the expanded use of cellphone tracking and other surveillance technology by government officials, the law is developing further, albeit slowly. Earlier this year, for example, the Supreme Court unanimously held that the police physically attaching a GPS device to a suspect’s car violated the Fourth Amendment prohibition against unreasonable searches, but decided
the case on narrow grounds and left open the question of whether electronic tracking without a physical “trespass” similarly would violate the Constitution. The court likely will revisit this
question, as lower courts have reached different conclusions as to whether the government obtaining cellphone
tracking information violates the Constitution.
The civil liberties versus national security debate will continue to rage on, and cannot be decided in this essay. We ask a lot of our intelligence and law enforcement communities when it comes to keeping us safe from another terrorist attack — nothing short of perfection, really. And if we are going to ask for perfection, we ought to give them the tools they need to protect us. But as Ronald Reagan once said, “freedom is never more than one generation away from extinction,” and the public should never thoughtlessly surrender the liberties that many generations of Americans have fought to protect, even — if not especially — to our own government. Over the last decade, we have experienced an incremental loss of freedom in the name of national security, and there have been many attacks prevented as a result. Perhaps we have achieved the correct balance. But as technology advances and government surveillance becomes easier to accomplish, the public must remain vigilant and hold the government accountable to justify the next encroachment on our liberty in order to maintain the equilibrium between freedom and security. •
Scott A. Coffina is a former federal prosecutor and former associate White House counsel to President George W. Bush. He currently is a partner with Drinker Biddle & Reath in Philadelphia.