[privacy] Surveillance Showdown -- Thank the "privacy" nuts

["Richard M. Smith" <rms () computerbytesman com>]

http://online.wsj.com/article/SB119059829509836984.html?mod=todays_us_opinio
n
 
"For the first time in history our country is being asked to forego
intelligence capabilities in time of war. Thank the "privacy" nuts.
 

Surveillance Showdown

By DAVID B. RIVKIN JR. and LEE A. CASEY
September 24, 2007; Page A19


Would any sane country purposefully limit its ability to spy on enemy
communications in time of war? That is the question Congress must answer as
it takes up reform of the Foreign Intelligence Surveillance Act (FISA) this
week. Privacy activists, civil libertarians and congressional Democrats
argue that both foreign and domestic eavesdropping must be subject to
judicial scrutiny and oversight, even if this means drastically reducing the
amount of foreign intelligence information available to the government,
without ever acknowledging the costs involved. It is time the American
people had an open and honest debate on the relative importance of privacy
and security.

 [Surveillance Showdown]
<http://online.wsj.com/public/resources/images/ED-AG430_rivkin_2007092316552
3.jpg> 

FISA, of course, is the law regulating the government's interception of
"electronic communications" for foreign intelligence purposes. Earlier this
year the special FISA court narrowed dramatically the National Security
Agency's (NSA) ability to collect overseas intelligence under the law, so
Congress passed a six-month amendment before its August recess to allow
current surveillance programs to continue. That amendment should be made
permanent.

When FISA was enacted in 1978, most of this foreign intelligence collection
was accomplished by NSA satellites and "listening posts" located outside of
the United States. That enabled that agency to acquire, without any judicial
involvement, vast quantities of global communications. The fact that foreign
targets contacted Americans was of no legal consequence. Even the strongest
congressional proponents of FISA's regulation of surveillance activities
recognized that intelligence gathering was a key executive function, and the
U.S. needed as much foreign intelligence as possible. This bipartisan
consensus -- that FISA compliance should not impede foreign intelligence
collection -- was all the more notable coming amidst the congressional
reaction to Watergate and at a time when the Cold War threats to national
security, while formidable, did not require real-time surveillance of
numerous nonstate actors.

Today, primarily because of the communications technology revolution, much
of the same foreign intelligence information, focused on non-U.S. persons
overseas, passes along U.S.-based fiber optics systems. Unfortunately, much
of the Democratic congressional leadership says this new world requires more
stringent regulation than in the past because of the risk to the privacy of
innocent Americans. But this problem is one inherent in all surveillance
schemes whether they're overseen by courts or not.

All suspects, whether garden-variety criminals or terrorists, whether
surveilled with or without a warrant, invariably contact numerous innocents.
Requiring the government to obtain a judicial order for all overseas
surveillance whenever an American's communications might be intercepted will
not solve this problem.

The government does utilize a series of "minimization" procedures governing
how foreign intelligence information is handled to prevent its inappropriate
use or disclosure. As explained by CIA Director Michael Hayden in 2006,
referring to the post-Sept. 11 terrorist surveillance program before it was
subjected to FISA: "if the U.S. person information isn't relevant [without
foreign intelligence value], the data is suppressed." The fact that senior
U.S. government officials (unlike their counterparts in other countries) do
not routinely have access to the unredacted surveillance-generated
information about American citizens, and that the system is operated largely
by career civil servants, provides an additional layer of privacy
protection.

Warrantless surveillance is also constitutional. The Fourth Amendment
prohibits only "unreasonable" searches and seizures. Although today's
privacy advocates routinely claim that warrantless searches are inherently
unreasonable, that position is insupportable. The Supreme Court has
repeatedly approved numerous warrantless searches, balancing the
government's interests against the relevant privacy expectations. Thus
drivers can be subjected to sobriety checkpoints and international travelers
are liable to search at the border.

The key in such cases has generally been the presence or absence of a
"reasonable expectation of privacy." If there is no reasonable expectation
of privacy associated with a particular location or activity, then a
warrantless search is not unreasonable. Whether Americans have a reasonable
expectation that their international communications -- which may be routed
through any number of foreign countries and are routinely subject to capture
by foreign intelligence services -- will not be incidentally intercepted by
the U.S. government is debatable. But foreign nationals communicating abroad
have no reasonable expectation of privacy vis-à-vis the NSA simply because
their conversations are electronically transmitted through American
switching stations.

On the other side of the scale, of course, is the government's obligation to
protect the American people. Because the U.S. faces a dispersed, shadowy,
and ideologically committed enemy -- in circumstances where defectors are
rare and the CIA's ability to penetrate the hostile networks is extremely
limited -- the most proactive electronic surveillance operations are
essential. Requiring judicial orders for the collection of foreign
intelligence anytime an innocent American's communications may also be
intercepted would cripple U.S. intelligence gathering. Obtaining orders
against many foreign targets about which comparatively little may be known,
including their true identities or the precise modalities of their
involvement with jihadist entities, would be impossible.

The privacy advocates claim that surveilling without traditional warrants,
albeit still with substantial judicial involvement, "purely"
foreign-to-foreign communications is enough. But many of the NSA's most
valuable overseas targets routinely contact Americans. Moreover, if the
Democratic-leadership authored FISA reform -- which requires judicial
involvement once a foreign surveillance target reaches a certain number of
communications with the U.S. -- were to pass, every foreign terrorist and
spymaster would communicate with the U.S. enough to be enrolled in the
warrant-driven surveillance program. As a result, the only people overseas
who could still be surveilled warrantlessly would be the ones with the least
intelligence value.

The privacy advocates also criticize the NSA's efforts to collect vast
quantities of information, claiming that more targeted, individual-specific
surveillance is both more privacy-friendly and better protects America's
safety. However, unlike the Cold War-era -- when the NSA was focused largely
on a few state entities, and had a pretty good idea of who the targets were
-- today targeted surveillance alone is not enough. Thousands of individuals
participate in various ways in jihadist activities, and even more
individuals possess valuable information about them. All of them seek to
blend into society, benefiting from the anonymity of modern life and ease of
travel and communications. Because their behavior differs in subtle ways
from the conduct of law-abiding citizens around them, NSA-led broad
surveillance, backed up by various pattern-recognition programs, can
identify the right targets.

Indeed, privacy advocates seek to ban the NSA's overseas-focused broad
surveillance programs -- and require warrants whenever overseas targets have
a number of contacts with the U.S. -- precisely to decrease dramatically the
total number of foreigners tracked by the NSA. Their logic is unimpeachable
-- the fewer foreign targets are reached by the NSA, the fewer innocent
Americans would be caught up in the surveillance net. But this fervent
commitment to protecting the privacy of Americans from all intrusions comes
at a very high cost; for the first time in history, the U.S. is asked to
collect less intelligence about the enemy while prosecuting a war.

Those who want to subject all government surveillance activities to a
warrant requirement should honestly acknowledge that this approach would
dramatically shrink the stream of foreign intelligence available.

Let's be clear here: Privacy is an important value. American society cannot
afford, however, to elevate privacy concerns beyond all other
considerations. Being suspicious about governmental power is consistent with
our constitutional values -- the Framers certainly were so inclined -- but
being paranoid about one's own government is not.

Messrs. Rivkin and Casey served in the U.S. Justice Department under
Presidents Ronald Reagan and George H.W. Bush.

_______________________________________________
privacy mailing list
privacy () whitestar linuxbox org
http://www.whitestar.linuxbox.org/mailman/listinfo/privacy