If PRISM Is Good Policy, Why Stop With Terrorism?

Defenders of the program say its effectiveness excuses it -- but they ignore the Fourth Amendment.
Why bother with these gentlemen? (Associated Press)
"There are more instance of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." -- James Madison, 1788

My first day in college, the professor for Public Policy 101 asked a 200-person class, "If there were a policy that saved over 20,000 lives, reduced carbon emissions by 20 percent, reduced gasoline usage by 20 percent, decreased average insurance costs by 75 percent, and which would increase revenues to the federal government and not cost any additional money to implement -- who in this room would support this policy?" Of course, everyone's hands went up.

The policy solution that he was referring to, he soon revealed, was to cap national speed limits at 40 miles per hour. The room, filled mainly with 18-to-20-year-olds, was horrified at the prospect of never being able to drive their car above 40 mph on the highway. Individual freedom is difficult to quantify in public-policy analysis until its real costs are clear, but it has to be part of the conversation.

The government's policies in the NSA's PRISM program reflect perhaps the perfect storm of public-policy conundrums. This surveillance seems to offer short-term advantages, with the real costs hidden, diffuse, unknown, and, seemingly, far in the future. What, many ask, is the real price of giving up privacy? The government has presented PRISM, and other similar surveillance programs, as a solution to a danger and fear -- terrorism -- which is almost impossible to comprehend: Terrorism is everywhere and nowhere; the battlefield is across the globe; the threat is omnipresent. It is difficult for the average person to perceive and understand until it is splashed across television screens. Terrorism is by definition designed to "shock and awe." It is theatre of the macabre.

The government has used this fear to justify unprecedented intrusions into our privacy, including monitoring who we call, our location data, and allegedly even the contents of our communication (if there is a 51 percent chance that one party to the communication is foreign). Our personal calling data, emails, letters, credit-card transaction data -- everything seems fair game. The fact that the NSA wants this much information shouldn't be surprising. The old maxim that to a hammer every problem looks like a nail is appropriate here. A spy agency specializing in "signals" intelligence is always looking for more phone calls, emails, and other signals-based data to analyze. The more data NSA receives, the more powerful it becomes.

The most worrying facet of this story is the willingness of some Americans and members of Congress to so quickly disregard the Fourth Amendment and our liberty in the name of terrorism. Not so long ago, the U.S. faced arguably higher stakes, and more significant dangers, but made the opposite choices -- choices more consistent with our founding principles.

Throughout the Cold War there was a real threat of apocalyptic proportions. The Soviet Union assembled and deployed more than 45,000 nuclear warheads, enough destructive power to annihilate the United States and end humanity as we know it. The U.S. government did plenty of reprehensible things during the Cold War, including trying to assassinate elected leaders, subverting democracies, and wiretapping political rivals and "subversives" such as Martin Luther King Jr. As a result of these scandals, along with Watergate, the American people responded and demanded accountability through the Church and Pike Committees of the 1970s in the House and Senate.* Will they do the same today?

If the justification for PRISM and associated programs is predicated on their potential effectiveness, why shouldn't such logic be applied elsewhere? Here are several other even more effective public-policy solutions that also violate the Fourth Amendment in similar ways and are just as reprehensible. There is some dispute over whether PRISM and other reported programs are legal or Constitutional. I believe, and have argued, that third-party records should be protected under the Fourth Amendment, so that access to these records requires a warrant. This is not the perspective the courts have taken. But if we are going to use personal data obtained through PRISM for terrorism purposes in a way that violates our privacy and which I would argue violates the Fourth Amendment, why not do it for other legitimate purposes?

1. Child Pornography: Whenever the FBI receives a computer for a routine search, it searches the computer for known "hashes" of video and picture files of child pornography. This allows it to quickly and easily search every computer brought in, time permitting, for known child pornography. Of course the FBI receives many computers through warrants, but this is still a small percentage of all computers.

Since the NSA seems to have access to a substantial amount of web traffic, what if it used spare capacity for "deep packet inspection" technology to identify known child-pornography pictures and videos? Software would only flag the transfer if there were a 100 percent certainty of it being the exact same file. (Since this is a hypothetical, let's assume the technology exists and can be implemented.) Laws against child pornography are partially designed to dry up the market for child exploitation. This policy could greatly reduce child pornography, catch potential pedophiles, and reduce existing child exploitation. From a legal perspective, the courts have found that individuals have no reasonable expectation of privacy for contraband; therefore, if such a search only finds contraband then it may be on more solid legal territory. Should the government be able to use technologies like PRISM and related exposed programs to find child pornography?

Presented by

Derek Khanna is a Yale Law Visiting Fellow at the Information Society Project. He was previously a congressional staffer for the House Republican Study Committee and Senator Scott Brown (R-MA). He writes about issues at the intersection of government and technology.

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