September 12, 2013


As we pass the 12th anniversary of 9/11, the debate intensifies over where to draw the line between safeguarding Constitutionally-guaranteed freedoms versus freedom from further attacks. New revelations about the extensive domestic spying capabilities of the National Security Agency (NSA) seem to come out every other day, along with reports of widespread abuse of the legal authorities granted to that agency.

The NSA has found the keys to unlock your e-mails, your banking records, or your medical records. They can track cell phone calls and monitor Internet traffic. It can begin with a conversation between two people you've never known, from a country you may never have heard of. A few degrees of separation later and you could be on the list to be monitored. Not that you would ever know. Any company official involved in granting access is forced to sign a document pledging secrecy under penalty of imprisonment.

Three issues relating to NSA's spying program should be of concern to every American. First, the standards whereby an individual can be swept up in NSA's dragnet. How connected do you have to be before you can be subject to investigation?  Second, the secrecy surrounding the opinions issued by the Foreign Intelligence Surveillance Act (FISA) Court that permits the NSA to conduct its eavesdropping. How can we the people exercise our consent to be governed if we can't learn anything about what is being done in our name? Third, the clampdown placed on corporations forced to hide their cooperation from their customers. How can an Internet business maintain the confidence of its customers if we don't know what is being done?

The Internet came into widespread use during the 1990s. Till now, the oversight of what has become an essential component to all aspects of society has been haphazard at best. It has been assumed that there is a level of privacy to our transactions on the Internet. This privacy is critical as we are forced to do more and more of our routine activities via the Internet. Think about voting, which, believe me, is coming soon to an Internet near you. How can we protect the sanctity of the private vote if the NSA can drop in and take a peak any time it wishes?

The Patriot Act and FISA were passed at the height of the post-9/11 trauma. A decade later, it is fair to ask if putting limits on the NSA makes us less safe from an attack by terrorists? In my view, not one bit. Theoretically, there is supposed to be concrete evidence before NSA undertakes any kind of domestic surveillance. What's at issue here is how concrete that evidence has to be and the width and breadth of the dragnet that stretches out to bring in ever more people with only a tenuous connection at best to the initial threat. Individuals found through normal intelligence processes to be directly connected to a suspected threat can be investigated thoroughly under any reasonable interpretation of the laws. It's the friend of a friend of a friend who is calling about getting his lawn mower back that is the issue here.

Sure, you can dismiss the whole NSA thing by saying that anyone using the Internet should not expect privacy. But the fact is we do expect privacy. And even if we don't necessarily expect it, we certainly would like to have as much privacy as possible. The policy should be to carry out needed investigations with an aim towards preserving our right to privacy guaranteed under the Constitution, not exploiting loopholes in hastily crafted laws to gain unfettered access to our on-line lives. We the people have a right to set limits. We have a right to say this is where we draw the line between giving up our hard-earned freedoms in the name of domestic tranquility. That is what is meant by the consent of the governed.

To me, the greater worry is what one person creates, another person can steal or replicate. Now that the whole world knows how it can be done and, more importantly, that it has been done, NSA's feat will eventually be replicated by other governments, not to mention some corporations that have resources equal to many governments.  It is only a matter of time.

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