"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?
2. Speed Limits: Many accidents are related to reckless driving, and speeding can make them significantly more dangerous and deadly. What if instead of enforcing speed limits by stationing police officers to patrol our streets, a relatively ineffective and costly method of enforcement, the government instead monitored the speed of all cars in real time using cellphones. If NSA data on phone location were analyzed in real time, it could potentially determine the speed of any user. All phones traveling below 20 mph would be excluded on the assumption that they're not driving. All phones traveling faster than 20 mph would be plotted to discern what road they are traveling on and what the speed limit is for that road.
The government could then identify drivers who were speeding and send them tickets in the mail, text them to slow down (then ticket them for opening it while driving!), or dispatch an officer to catch them. Further data analysis could identify potential drunk driving for police investigation, based upon erratic driving patterns or when phones were at known bars for several hours before being in a vehicle. Such policies could potentially save tens of thousands of lives and increase revenues from speeding fines while reducing the costs of patrolling the road. Should the government be able to use technologies like PRISM and related exposed programs to make our roads safer?
3. Illegal Downloading: Millions of Americans have used BitTorrent or other technologies to illegally download music, movies, TV shows, and software. While torrents can be used to download non-copyrighted and copyrighted digital goods, a substantial amount (one study found 89 percent) of the traffic appears to be used for illegal downloading. NSA PRISM level surveillance could be of use in identifying which users are using BitTorrent, then identifying the users who have uploaded or downloaded the most, and identifying whether their downloads involved illegal content. (Again, let's assume the technology is available.) This information could be forwarded to the Department of Justice for prosecution (or more crafty lobbyists could get the information forwarded to a private entity like the RIAA or MPAA for lawsuits). Should the government be able to use technologies like PRISM and related exposed programs to protect copyright holders?
If the barometer for violating the Fourth Amendment is efficacy, then why should these not also be up for discussion? The answer is clear: The Fourth Amendment was not designed for efficacy. It was designed for privacy and to defend our liberty. If that's not the case, why even stop with these examples? Most of our phones have cameras and microphones that, at least in some circumstances, can be turned on remotely that would surely provide invaluable information for intelligence and law enforcement (the FBI has used this for organized crime prosecution, remotely turning on the microphone of phones to record non phone-call conversations).
Information given to the government for the NSA may be made available to other agencies such as the IRS, why wouldn't it be? We already know that it has been shared with foreign agencies (e.g., Dutch intelligence, German intelligence, and British intelligence). Even if a court were to find that PRISM data violates the Fourth Amendment, courts have traditionally held that even information that was illegally obtained can be used in court to impeach testimony -- in other words, it could plausibly be admissible to catch a tax cheat.
And as many of us in the technology world know, once something exists in data form it is often retained forever. In an era where data storage is cheap and getting cheaper, American citizens' information will likely be retained indefinitely (the NSA is building that capacity in a Utah facility). At some point this massive repository of information may be hacked, at some point could be available to political appointees looking for partisan gain, or it may be used for "security" reasons against "troublemakers" trying to change our society -- social change often comes through those who are perceived to be dangerous to the state.
As James Madison argued in Federalist 51, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." But men are not angels and we have experience with elected leaders that are partisan, opportunist, short-sighted and, sometimes, even corrupt. Government's natural inclination is to abuse its power, one critical reason why our Founders limited it.
The danger of a surveillance state is not the obscure chance of a truly evil person abusing the system; rather, the actual threat, the real danger, is a person with good intentions who believes that their draconian actions are morally justified and prudent. It is such a leader, perhaps with the best of intentions, who can make the most heinous of mistakes with eyes wide open and belief that the ends justify the means. Those ends never justify eviscerating the Fourth Amendment.
* This is not to say that the Church and Pike Committees completely dealt with abuses -- they did not -- but they were a clear step in the right direction and demanding accountability and limits to government abuse.