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Spying on Americans and defending the practice of it

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The National Security Agency (NSA) headquarters in Fort Meade, Md.

The National Security Agency (NSA) headquarters in Fort Meade, Md.

Photo by NSA via Getty Images

The fact that the National Security Agency has been examining records of millions of private telephone calls is disturbing in itself, but official statements defending the practice are even more unsettling. The Obama administration says citizens concerned about privacy rights have nothing to worry about. The a dministration is wrong.

There is more than ample reason to worry when government acts in Big Brother fashion to routinely snoop on private communication logs, regardless of what justification the government might have. And there is more reason to worry when the government is vague about its justification, refusing to disclose details as to how widespread the surveillance is, and exactly why it is critical to homeland security.

Leaders from both sides of the aisle are defending the practice, but their comments offer little insight and less comfort. Senate Majority Leader Harry Reid, D-Nev., said, "Right now I think that everyone should just calm down and understand that this isn't anything that's brand new. This is a program that's been in effect for seven years."

It's hard to see how the fact that such surveillance has virtually become standard operating procedure over a period of years should make people feel better. It actually should increase their queasiness.

Sen. Lindsey Graham, R-S.C., said, "If you're not getting a call from a terrorist organization, you've got nothing to worry about." That argument has been used before. If you're not talking to communists, you have nothing to worry about. If you're not surfing the wrong websites, you have nothing to worry about.

The senator may as well have said, "The government knows your every move, so you better not step out of line." Such sentiment reveals exactly what we should worry about – a gradual and pernicious erosion of our constitutional protections from unwarranted search and seizure. It strikes at one of our most precious ideals — that we are free agents in a free society with an ongoing expectation of personal privacy.

Reports of the NSA's massive records hunt — along with the Justice Department's surveillance of correspondences by journalists, and news that security agencies are routinely scanning Internet traffic for personal communication — is just the latest evidence that Americans have let down their guard against overreaching government.

There are legitimate reasons for law enforcement and security agencies to conduct surveillance, but such searches have previously been subject to more vigorous rules. Traditionally, the concept of "probable cause" has served as a threshold authorities must cross before they can tap a phone or delve into private records. They must provide evidence to a judicial authority that there is reason to suspect an individual of a particular transgression.

But laws passed after the 9/11 attacks have established a new mechanism for authorities to seek judicial approval, through a special National Security court, to cast a wide net for all sorts of records under the premise that the amalgamation of data could be analyzed for patterns of suspicious behavior while not involving a specific focus on any individual or group.

Thus, millions of Americans have lost some measure of privacy simply because they have a cell phone or a computer, and the government has evidence that terrorists have cell phones, too, and use them to plot acts of aggression. The government says such surveillance is necessary to seek out suspicious activity. But the blanket nature of the NSA's surveillance suggests a broad widening of the "probable cause" threshold to one that essentially holds everyone under potential suspicion until they are cleared by an examination of their records.

We don't know if the practice has resulted in shutting down any terrorists' plots. We do know that the NSA has no plans to reduce or limit this kind of surveillance – quite the contrary. A giant new NSA data center in Bluffdale is said to have the capacity to scan the entire store of the world's electronic communications on a daily basis.

Because we have the technical ability to conduct such surveillance doesn't mean we should, especially without clear and stringent accountability. Until there is evidence such accountability is firmly in place, there are reasons to be worried.