
In
light of the continuously-developing NSA spying story, it's important
to look at how substantial the government's legal justification is for
its overreaching domestic surveillance policy and how said policy can
impact the lives of ordinary citizens who supposedly have "nothing to
hide".
First, let's look at government's legal argument. Earlier this month, The Guardian released the
NSA order
which compels Verizon to deliver customers' call information to the
agency on an "ongoing, daily basis". Since that time, a plethora of
additional information has come to light which demonstrates that the
size and scope of federal domestic spying policy goes far beyond the NSA
and Verizon. Nevertheless, the NSA Verizon order demonstrates how the
government uses
Section 215 of the Patriot Act to trounce the Constitution. Indeed, the order references the highly-controversial section in
the very first line.
The ACLU has
come to the conclusion
that Section 215 of the Patriot Act is the specific legal order that
authorizes the federal government to surveil the electronic
communications of ordinary Americans. This section, according to the
organization, enables the government to apply to the
Foreign Intelligence Surveillance Court--which NPR's
Dina Temple-Raston calls a
domestic spying "rubber stamp"--to
obtain legal clearance to circumvent 4th Amendment protections. In
other words, the feds are granted permission to violate Americans' civil
liberties as per the rulings of an autonomous, opaque court system that
justified the existence of Section 215 in the first place! The section, according to the ACLU:
...authorizes
the government to obtain "any tangible thing" relevant to a terrorism
investigation, even if there is no showing that the "thing" pertains to
suspected terrorists or terrorist activities. This provision is contrary
to traditional notions of search and seizure, which require the
government to show reasonable suspicion or probable cause before
undertaking an investigation that infringes upon a person's privacy.
"Any tangible thing" means
ANY form of Americans' electronic communication, domestic or international. That should be extremely concerning to everyone, irrespective of ideology and if one has "nothing to hide".
So,
why, then, should someone who supposedly has nothing to hide be
concerned about Section 215 or federal domestic spying at all?
"Nothing to hide" is a myth that's built
on certain false assumptions that are rarely--if ever-- considered when draconian
surveillance measures are being pushed. Toby Stevens of Computer Weekly
characterizes these assumptions as continuity, context, control, and consistency:
- Continuity: When a large data gathering
exercise is started, the lifespan of the system will almost always be
greater than that of its instigators. The most benign and caring
government, authority or private company is inevitably subject to a
change of management, and if the new executive does not share their
moral stance, then data can be reused for very dangerous purposes. Those
who provided data believing they had nothing to fear may find that data
is misused in the future.
So, change of management--continuity--means that draconian laws can be abused by future regimes. I suspect that some
enterprising bureaucrats already use sensitive data gathered
in the name of the "War on Terror" to further political agendas. While
such abuse may be isolated today, it could become widespread in the
future.
- Context: Those who use the NTHNTF
argument most commonly use it in the context of government collecting
information about individuals. In the information age, the idea of a
single entity holding that information does not hold true. The massive
pressures to share information within and beyond government mean that
information is constantly on the move. Sooner or later, information held
by the government will be shared across the government and with the
private sector.
Sensitive data gathered in the name of the "War on Terror" may
remain within the Department of Homeland Security and the FBI today,
but, eventually, they might be accessed by other government agencies or leak out to private
sector organizations that have the ability to disrupt ordinary citizens'
lives: credit bureaus, current or potential employers, etc.
- Control: Whether through a sharing
agreement, aggregation of databases or simply leaving a memory stick in a
pub car park, information is always shared sooner or later. Information
security professionals always assume a system to be insecure, and plan
for when - not if - data is lost or corrupted.
Sensitive data gathered in the name of the "War on Terror" could
also be accessed by hackers, who could sell it or use it to intimidate
or blackmail.
- Consistency: The most important issue is that of consistent use of accurate information across all authorities and all individuals.
The recent IRS scandal demonstrates that some enterprising bureaucrats can--and will--use sensitive data inconsistently
based on political agenda. Again, while such abuse may be isolated
today, it could become widespread in the future.
The
government's legal justification for its overreaching domestic
surveillance policy and how said policy can impact the lives of ordinary
Americans are two issues of paramount importance in this period of U.S. history. We must demand that our elected officials rethink the existence of
the FISA court, revise Section 215 of the Patriot Act, and expunge
sensitive information gathered in the name of the "War on Terror".
Seth Mason, Charleston SC