When we make "tradeoffs" for "national security," shouldn't we know what we're trading off?

"Since President Obama is asking us to trade some of our privacy with respect to our phone calls and our use of the Internet for greater protection against terrorism, at the very least we need to know exactly how our privacy is being violated."

-- Aryeh Neier, in a New York Review of Books blogpost,
"Spying on Americans: A Very Old Story"

by Ken

In this voluminous NYRB blogpost (I'm thinking it must be parked on the NYRBlog while awaiting inclusion in a future issue of NYRB), Aryeh Neier -- longtime national director of the ACLU, executive director of Human Rights Watch, and most recently president of George Soros's Open Society Institute -- opens with a little dark comedy, after reminding us, "There is nothing new about political surveillance."

One of the early practitioners, Joseph Fouché, the chief of police in Napoleonic France, supposedly had thousands of informers who sometimes acted as agents provocateurs. It is said that, on one occasion, two of his agents, unknown to each other, attended the same meeting where each proposed various revolutionary acts. Leaving at about the same time, they are reported to have arrested each other at the foot of the stairs.

Though the activities of the National Security Agency now in dispute are different than such earlier precursors, it is important to recognize that the older forms of surveillance persist. . . .

And he proceeds to give us a thumbnail history of both kinds of surveillance as practiced in modern times by the U.S. government, with a useful reminder that the precedents aren't encouraging: "Much of the political surveillance of the 1960s and the 1970s and of the period going back to the World War I consisted in efforts to identify organizations that were critical of government policies, or that were proponents of various causes the government didn’t like, and to gather information on their adherents."

"The NSA’s surveillance practices that have been revealed in recent weeks are fundamentally different," Neier writes.

They do not involve efforts to monitor the activities of individuals on the basis of their affiliations with certain organizations or causes. Rather, they attempt to identify the targets for surveillance through patterns of electronic behavior that arouse the government’s suspicion. Yet these new forms of surveillance, over time, may lead in the same direction. Those identified in this way may be excluded from certain benefits or opportunities on the basis of having been identified for engaging in activities that are legitimate. If that were to happen, they are unlikely ever to find out that they have been blocked on such grounds.

Perhaps more dangerously, Neier cites the experience of the FBI's 1956-71 Counter Intelligence Program, COINTELPO, whose "purpose was to interfere with the activities of the organizations and individuals who were its targets or, in the words of long-time FBI Director J. Edgar Hoover, to 'expose, disrupt, misdirect, discredit or otherwise neutralize' them." The plug was only pulled because of the release to the press of seriously incriminating documents stolen by activists from a small Pennsylvania FBI office. (Hmm, stolen documents released by activists to the press, producing scandalous revelations. That could never happen again, could it?) Neier draws an interesting lesson from COINTELPRO:

any government agency that is able to gather information through political surveillance will be tempted to use that information. After a time, the passive accumulation of data may seem insufficient and it may be used aggressively. This may take place long after the information is initially collected and may involve officials who had nothing to do with the original decision to engage in surveillance.

Which leads him to a point that seems worth underscoring in the present noise about the NSA disclosures, offering an example that I think makes a good case for when we might be said to have legitimately accepted a tradeoff of rights for security.

President Obama has argued that we cannot have absolute protection against terrorism or absolute protection for privacy, and that some trade-off is necessary. That sounds reasonable. The difficulty with the president's formulation, however, is that we cannot know what trade-off is acceptable if the programs that invade our privacy are kept secret.

One area in which Americans have generally made peace with such a trade-off is air travel. Some people resent the screening of passengers at airport security as an intrusion on bodily privacy. Yet most Americans have accepted giving up a small amount of privacy in the interest of safety. We are able to do so because we know what is taking place and we can gauge the extent to which our privacy is compromised.

Since President Obama is asking us to trade some of our privacy with respect to our phone calls and our use of the Internet for greater protection against terrorism, at the very least we need to know exactly how our privacy is being violated. We also need to debate fully whether such measures uphold our Constitutional rights, such as the First Amendment's guarantees of freedom of expression and the Fourth Amendment's prohibition of unreasonable searches and seizures. Yet if the program is kept secret, and if even the court opinions stating the rationale for authorizing surveillance are kept secret, we cannot decide whether a trade-off is warranted; if it is warranted, exactly what should be traded; if constitutional rights are implicated, whether these are appropriate matters for a trade; or how we can impose limits on any trade so as to minimize the violation of our rights. A trade made in ignorance is not much of a trade.

SPEAKING OF WHICH, THE WASHINGTON POST
SENT OUT THIS "NEWS ALERT" THIS AFTERNOON

Google challenges U.S. gag order, citing First Amendment

Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests it makes, arguing that the company has a constitutional right to speak about information it’s forced to give the government.

The legal filing, which cites the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about sweeping National Security Agency surveillance of Internet traffic.

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