THE controversy raised by Edward Snowden’s revelations of the vast NSA program to track email contacts and phone conversations has revitalized an important debate about the proper balance between protecting American lives and protecting our civil liberties.
Congress and the Obama administration now seem poised to act on the issue, but the path forward will be as murky as the spy methods employed to capture data.
The NSA surveillance debate echoes an earlier brouhaha over Internet privacy. In January of 1999, Sun Microsystems Chief Executive Scott McNealy observed that on the Internet, “You have zero privacy anyway. … Get over it.” McNealy was referring to criticism of the user-ID features of Intel’s Pentium III chip.
Despite McNealy’s warning, as the Internet evolved over the next 15 years, eager adapters continued to hand over data to websites, Internet service providers and other application providers.
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The industry attempted to self-regulate with some degree of success, but the privacy policies of Web companies allow a broad swath of uses of personal information voluntarily provided by users. It’s no secret that 99 percent of Internet users simply click through the consent to privacy terms in order to enjoy the benefits of various products.
Unwittingly, as we feverishly adopted new technologies and devices, we created digital footprints without fully appreciating how such data might be stored and used.
Internet companies have always been quick to point out that users, who supply personal data on sites such as Yahoo and Facebook, can disable cookies in their Web browsers.
Yet the true extent of data mining and tracking of Web-browsing habits is little appreciated by most Internet users, even when it is disclosed in the fine print of 30-page privacy policies. Abandoning snail mail and landline telephony created the conditions for a surveillance society where our daily communication could be recorded and read by entities given sufficient access.
“Big data,” a term that refers to using high-powered computing to analyze vast amounts of digital data, uses algorithms to decipher globs of seemingly random data points. Scientists will use many of these techniques to tackle climate change, global epidemics and other critical problems. Business will utilize big data to more deeply understand trends and consumer habits.
Smart political organizations, like the 2012 Obama presidential campaign, will utilize such data to target voters with messages and get-out-the-vote operations. Like all new technologies, specific inventions will benefit society and also pose new and unpredictable threats.
But now, big data has been harnessed in the service of finding patterns that can reveal potential threats to our security without a public debate over costs and benefits. To pose a crude calculation, how many lives saved per year justifies the vast surveillance of our email metadata and phone conversations — 5, 50, 500?
While the government assures us that these methods are necessary to capture would-be evildoers, the secret nature of these investigations prevents us from learning if the surveillance was necessary to achieve the national-security outcome.
In a sense, part of the problem is inherent in the technology. Unlike phone wiretaps that require examination of specific connections between Suspect X and his or her associates, big data requires a vast funnel of data from a universe of users in order to identify meaningful patterns that might give rise to suspicious behavior.
The Obama administration has one hand tied behind its back in defending the NSA program, which began in the first term of President George W. Bush. The more specific details it divulges on thwarted terrorist attacks, the more the program and ongoing investigations are compromised.
If the public had more trust in the role of the Foreign Intelligence Surveillance Court to act as an impartial arbiter of surveillance requests, the program would enjoy more support.
As it is, The Associated Press reports that the court, created by the Foreign Intelligence Surveillance Act (FISA), considered 1,789 government surveillance requests last year and failed to approve only one.
Consensus is building around serious proposals to revise the FISA court, either by expanding the number of judges or mandating a representative for the public interest in such secret proceedings. In the current system, only a government representative is present to make the case before the judge.
The proposed public advocate would report findings on a regular basis to Congress and even to civil-liberties groups. Of course, critics will contend that such a public advocate will become a captive of the FISA process and fail to exercise true independence.
Ultimately, this debate between transparency and national security comes down to trust. Those who believe our elected officials and public servants in agencies such as the NSA and CIA are seeking to protect the public will come down on the side of allowing surveillance programs that rely on big data.
Those who distrust government and see the potential for abuse in all cases of general data collection will want to scrap the entire system and accept the risk that some threats, which could be exposed by data tracking, will fall through the cracks.
A dozen years after 9/11, the tide is turning back toward more resolute protection of our private communications and more transparency around judicial decisions that authorize the government to read our messages.
At minimum, the FISA process needs to be opened up to meaningful oversight by a variety of observers who can advocate for the public interest in protecting privacy. We can’t live in a permanent state of Orwellian diminution of personal freedom, even if that makes us safer.
Alex Alben is an author and high-tech consultant, based in Seattle. Email firstname.lastname@example.org