The Current Privacy Debate

Last week's disclosures do not surprise me. Having cut my professional teeth on the Patriot Act and subsequent developments throughout the Bush and Obama Administrations, having watched Congress progressively strengthen the provisions that back in 2001 so many found questionable, having learned through The New York Times of illegal and reckless surveillance under Bush, watched Justice then use the FISA Courts to bring it under law, and then having observed how the telecommunications' companies covered their potential liability through immunity provisions, and then how the Obama administration has carried those programs forward, I assumed everyone knew that section 215 of FISA was being used to monitor foreign communications, that inevitably some "U.S. persons" were caught in that surveillance and that our Internet darlings: Google, Facebook, AOL, etc. would be logical next steps for this program, especially under FISA Amendment Acts, recently renewed in 2012 until 2017.

Public reaction is what shocks me. What do citizens want? Do they think it is possible to manage an empire, which in 21st century terms is what the United States remains, without surveillance, secrecy, power and control?  If so, it is a very naive perspective.  As I took my younger son to visit the Roman Forum yesterday and reflected over the "glory that was Rome," I thought of the slaves that built those columns, the so many that died under its wars of conquest and how generations of caesars squandered the spoils.  I asked Sam if he thought a millennium or two from now people would be in Washington, D.C. looking over a similar set of ruins and he said he did not think so, that civilizations will not rise and fall as they did then.  Perhaps he is correct.  Technological progress has made the world so interconnected that even war-torn areas such as Iraq rise to produce wealth again … just ask the Chinese investors there who reaping energy rewards in those oil fields that the United States protected with its soldiers' limbs, blood, hearts and minds.

If one is wiling to accept that empires require secrecy, surveillance, power and control and yet seeks only balance between national security with civil liberties, then may I suggest two simultaneous paths upon which to embark. The first path is to allow the scales to fall from our eyes about the transcendental nature of the Internet. With regard to power and control, the Internet transcends nothing; in fact, as many people are now coming to recognize it has the capability to enhance those very imperial qualities.  And if you are concerned about what the U.S. government is doing, then you will be really at a loss to appreciate what private corporations -- not least those Internet darlings -- are doing to you, Mr. and Mrs. U.S. Citizen/Person.  Unlike the Obama Administration using the FISA Courts constructed under the Carter Administration (yes, our best ex-president ever -- the Carter Administration in 1978), which the Patriot Act of 2001 under Bush expanded, the Internet darlings do NOT restrict their collection, analysis, recombination and sale of YOUR personally identifiable information (which you give up freely in most cases) to "foreigners" or communications outside of the United States. YOU, Mr. and Ms. America, are their prime market.  

Let's end the illusion that giving up information about yourself to a for-profit company that offers a service "for free" does not have some underlying business model that implicates the very information you provide.  It is time, if nothing else at this juncture, to come to a greater maturity on consumer use of the Internet.  This area of law is not about government surveillance.  In the rubric about privacy I created in this blog series some months back, it would be types "5" or that which comes under regulatory scrutiny, not criminal law.  A political culture of free speech and an entertainment society thrilled by personal disclosure work hand in hand with market drivers for everything from computers to social networking sites to restrict the ability of regulatory bodies such as the F.C.C. or the F.T.C. and then the D.O.J., to do much more than watch over deceptive practices and prosecute fraud.  In the time-honored, free market world this law is largely governed by contract law.  When you hit those terms of service affirmatively without reading or understanding a word, it is in support of a political economy that only you, Mr. and Ms. Citizen, have the agency to alter.

The second path is to become better schooled about what has transpired in the last decade or so with regard to the laws that govern government surveillance of electronic communications.  In the past I have provided chapter and verse analysis of these laws. (See for example: "Civil Privacy and National Security Legislation: A Three-Dimensional View")  But since this is a blog, I summarize: in response to national security concerns, all three branches of the United States government have expanded the legal ability to acquire information in the electronic medium. A very much outdated Electronic Communications Privacy Act has made the actual scope of this expansion even greater than that which is prescribed by law to comport to 20th century Fourth Amendment jurisprudence.  Perhaps there is some fortune in having last week's disclosures come as a serious revision of this law is under Congressional review.  So if you are genuinely bothered by what you have recently learned about what the federal government does with electronic communications outside of the United States and within it for terrorist investigations, then you had better come up to speed on what is happening in this arena.  (Greg Nojeim's work at the Center for Democracy and Technology would be a good place to start.)  

And then let's do some simple math: Giving up information freely on popular Internet sites + support of government expansion of surveillance as a means to counteract terrorism = last week's news.  

What do I suggest?  1. Fix E.C.P.A.; 2. Make law that require more transparency not necessarily on terrorist investigations but the nature of the software algorithms that allegedly separate the wheat (terrorist information) from the chaff (conversational detail found not to be of interest to a terrorist investigation) and let us know what the government does with the chaff; 3. Keep the debate, discussion and conversation on this subject on the front burner. Criminals are always ahead of the game and technology alone without their intent makes this area a moving target.  Exercise your existing rights as an informed and vibrant citizen if you fear those rights are in the bull's eye.