In my 35 plus years as a Navy Officer and as a government contractor, I maintained a National Security Agency (NSA) clearance, and have a great deal of respect for the need for security. I must admit that I used to have more respect for the NSA than I do now, having learned how much surveillance we are now all subject to. Since returning to Edgefield County ten years ago, I have had the opportunity to think more about the threat to all of us from the outside as well as the consequences to all of us when our privacy is compromised from the inside.
In thinking about surveillance, I have come up with four questions that I really would like to have answered. Some of those answers might not be available to me (or to you), but they are important nevertheless.
- What does the present law allow our security agencies (NSA, FBI, Homeland Security, SC police, others) to collect about American citizens, without a publicly available judicial warrant? Maybe part of this should be withheld from the public so our adversaries won’t know; but none of this should be withheld from our elected legislators. It should not be up to “secret courts” like FISA to decide what is and is not legal, with no oversight. All members of Congress must be told about – and have the opportunity to change – the interpretation and consequences of laws they themselves have enacted.
- What technological advances might increase the capability to mount this kind of surveillance, and what government research is underway to do that? The answer is and likely ought to be classified, but some among our elected officials should always know the answer, to determine what changes to present legislation might be called for.
- What do our agencies actually do regarding surveillance? Just because something is legal or possible, doesn’t mean we actually do it. Further, there are surveillance actions whose legality may not have been determined. In any democracy, elected officials need to know what the government actually does.
- Who, exactly, are the people empowered by their positions in our government – not just federal, but also state and local – to know the answers to questions (1), (2), and (3)? Who can be told, who must be told, and who decides who can and who must be told? What should the public be told?
That last question is the most important. Who gets to decide what is and what is not legal, and is that decision subject to review by somebody else? Who gets to decide what “state of the art” capabilities we presently don’t have that we ought to develop, regardless of whether we can legally use them? We should include in this category what capabilities other nations have, legal or not by American standards; if we find that China (for example) has a surveillance capability we don’t have, does it necessarily follow that we need to be able to do that too? Who gets to decide what our agencies actually do? Even if they don’t do things that are illegal, do they need to do everything that is legal, right up to the very edge between legal and illegal? Who gets to decide, some appointed official or career government employee? And in our democracy, who gets to know?
Renewing Section 215 of the Patriot Act, which allows the government to collect everybody’s telephone records without a warrant (calls to / from / when / duration), is in the news this week. At least one court has ruled that Section 215 is unconstitutional. The leaders of the two houses of Congress have been unable to agree with each other, not to mention with all the fractious members of Congress on both sides of the aisle.
What, dear reader, do you think the answers to these four important questions ought to be?