Thoughts on Independence Day: Security vs Privacy

happy-4th-of-july-2012-fireworks-flag-usaWith few exceptions, the focus of both the news and US political rhetoric on whistleblower Edward Snowden’s leaks concerning the NSA’s surveillance of digital communications has been firmly on him. It’s been a kind of ‘Where’s Wally?” played out, one assumes, for half-witted adults, on a global scale.

It’s an eerie comment on the state of our societies that we’re so much more entranced by the narrative of a single man – whether you consider him a despicable traitor or a champion of the rights of the individual to privacy – than we are focused on the information that he released.

It’s a bit of a perfect storm. I’m not alleging a conspiracy here. Two separate but aligned agendas are simultaneously but successfully directing our attention away from substantive issues. The media has always found it much easier to sell character-driven narrative than ideological debate, and US politicians have an interest keeping the tone similarly focused on Snowden rather than on his revelations.

So, as it is still Independence Day in the land of the free and the home of the brave, I felt it might be timely to petition my American friends to consider issues that underlie the Snowden debacle.

There are people who will steadfastly refuse to believe that their privacy has been in any way impinged by the NSA’s digital surveillance activities. This is a black is white argument and I have no illusions that this post will cause these people to consider their situation. However, there is a far larger group of people who aren’t sure, don’t care, or are willing to trade away their right to private communications in the interest of national security. And, what is more, there are many non-Americans who are internet-savvy enough to know that there really aren’t any borders when it comes to online communications.

First, let me be clear: there is no specific provision in the US Bill of Rights to privacy of communication. There are hints at it. The courts have not made the issue any clearer, really. Certainly there has existed a sense that it was both illegal and ignoble to open sealed mail that was not addressed to you without probable cause and a warrant, and courts tended, on the whole, to set the bar very high in terms of what ‘probable cause’ meant. Although there have been cases establishing an employee’s right to an expectation of privacy on their work computers, this could be waived by the employee. There have been few recent cases involving the breaching of privacy of personal electronic communications. The Electronic Communications Privacy Act does offer some protection but not much. For instance, did you know that after 180 days, your server-stored email communications are no longer considered yours and private? Or that location information on your mobile phone, voluntarily given to telecommunications carriers were argued to be public information?In a way, this is all moot.

What the Snowden documents revealed is that the NSA’s Prism program enables the government to monitor virtually any type of digital communication they desire, and the FISA Courts that grant them the permission to do so have proven to be, virtually, rubber stamp courts whose deliberations and decisions are kept secret in the interests of national security. Proponents of this system of secret surveillance have claimed that it has prevented a number of terrorist attacks. Of course, it is in their interest to say this, but I’m not going to debate the veracity of this – it may very well be true. A more interesting issue to me is that the citizens of the ‘land of the free and the home of the brave’ seem unwilling to examine just how much of their individual freedom to privacy they are willing to give up in the name of security. 

I think it is fair to say that, since 9/11, Americans have given up a significant proportion of their constitutionally and legally endowed freedoms in order to be safer.  Whether they are, indeed, safer or not may be debatable, but the erosion of their rights is most definitely not. Why have the citizens of a country which has, traditionally, been so cognizant and so protective of its individual rights relinquished so many of them? And does the threat to their security really justify it? I’m not going to bother addressing the compromises other countries, like the UK, have made. Their constitutions and the national frameworks of their rights as individuals have never been as robust as those in the United States.

I’m not, like other critics of this vast surveillance effort, going to suggest that Americans have nothing to worry about or that the risks to their safety, both from without the US and from within, are not significant. They are. Numerically speaking, there are a small number of people in this world who want to kill Americans. Some of them are foreigners, and some of them are fellow Americans.  Some of them are foiled, and some, like the bombers in Boston, succeed – even after they’ve been under investigation by the FBI.

What I am asking is: have you really thought about the risk and have you considered what rights and privacies you are willing to give up? Would you be able to make a better decision on this if, for instance, you had some statistics on the likelihood of getting blown up if the NSA shut the Prism Program down? Don’t you think this is a decision you should be making for yourself, as a citizen of a democratic country?

Please don’t tell me you don’t have the expertise or the qualifications to make this call. Because you do it every day. Every day you get into your car knowing that approximately 35,000 people a year die in road accidents.  (That’s ten times the number of people who died on 9/11, every year) You assess the risk, you weigh the benefits and take your chances.

Somewhere along the way, we have been persuaded that freedom should be risk free. But it isn’t. The framers of the US constitution knew this. Freedom to be the sort of a society that America has always envisioned comes with inherent risks.  And many Americans willingly live with a much higher rate of gun deaths than other nations because they believe their right to bear arms is extremely important.

I’m asking you… what is your privacy worth to you? What is your free press worth (because if no communication is ever private, then you have no free press, no confidential sources)? What is your lawyer-client confidentiality worth to you? Electronic doctor-patient communications? Because right now, every time you get on the phone, or send an email, or chat on the net, your reasonable right to expect that this is private is an illusion.

America, land of the free, home of the brave. At the moment, you are neither very free nor terribly brave. Are you okay with that? A happy 4th of July to all of you.