Terrorism: Security vs. Privacy

We all care about our personal and national security and about our individual freedom, of which our privacy is an important element. Measures that serve both are win win and thus uncontroversial, but often measures that enhance one diminish the other. How and when to use such measures (tools) involve agreement on the balance of risks between security and privacy. Striking the best balance requires public review and debate and constant monitoring as I have discussed before. https://wcoats.wordpress.com/2016/03/24/fighting-terrorists-part-ii/

Tools that enable our government to collect information on and track individuals can enhance our security by detecting and hopefully interrupting plans to carry out terrorist attacks. The existence of such capabilities, e.g., to monitor phone calls, emails, payments, and physical movements, also create the capability of collecting such information on people for other purposes, e.g. for commercial or political espionage. Governments through out the world have used such tools to monitor and suppress the “undesirable” activities of their foreign enemies and sometimes of their own citizens. Limits and safeguards on the use of such tools can mitigate the risk that they can be misused to get private information on individuals for other unwarranted purposes.

Finding the best balance between security and privacy is difficult but important for our freedom. We know or assume that we know how Russia, for example, uses surveillance tools on its own citizens. We generally believe that our own government only uses such tools to enhance our security. But the risks of and the growing actual misuse of government powers for political ends (e.g., targeted IRS audits on political enemies, illegal surveillance of a government employee’s girl friend or wife, etc.) are challenging our, perhaps, naïve faith in the honestly of our government. Hillary Clinton’s mishandling of classified email and Russian theft of U.S. government personnel records are nothing compared to the temptation to steal historical data on the activities of Donald Trump and Mrs. Clinton.

The credible rule of law is one of the critical foundations of our personal freedom. It both protects and limits the extent and domain of our privacy. The principle of “Innocent until proven guilty” is an essential element of the rule of law. It evaluates whether an act has violated the law. In a free society people are not punished for acts contemplated but not committed. Acting against people the state believes might be likely to or inclined to violate the law, for example, that it thinks are likely to commit a terrorist act, would violate this fundamental principle of a free society. An exception to this general rule would be the arrest of a person having the instruments and ingredients for making a bomb and supported by evidence that he plans to make and use the bomb.

Following the terrorist attacks in New York and Washington DC on 9/11, public sentiment shifted its balance between security and freedom in favor of security. The so-called PATRIOT act signed into law by President George W. Bush on October 26, 2001, reflected that shift by infringing on our privacy and traditional rights in ways that would not have been accepted earlier. Moreover, measures that were initially considered temporary and emergency in nature have become increasingly accepted as normal. Even after a slight curtailment of the provisions of the PATRIOT act when it was renewed in 2015 most of these measures were left in place. No one seems shocked today that the government maintains a “No Fly” list based on suspicions that certain people who have committed no crimes might be potential terrorists. Such profiling unsurprisingly results in Middle Eastern Muslims dominating the list, a racial and religious discrimination that violates existing anti discrimination laws and would not have been tolerated before 9/11.

It is not unusual today to hear people who claim to appreciate the importance of the First Amendment to the US Constitution (freedom of speech) suggest that radical Islamist websites that attempt to recruit ISIS Jihadists should be blocked. Most of my friends are too young to remember the anti-communist witch hunts of Senator Joseph McCarthy of the 1950s from which we coined the term McCarthyism. It was a time when a frightened public saw communists under every bed. Soviet spies, a legitimate target for arrest and punishment, were often confused with Marxists (communists), who espoused an economic system now rightly discredited. Those of us who still support freedom of speech believe that bad and pernicious ideas are best defeated with reasoned counter arguments. We believe that it is potentially dangerous to our freedom to allow our government to determine what we can read, hear, or see.

Edward Snowden did our country a great service by forcing a public discussion of what safeguards are needed to strike the balance desired by the public between their security and their privacy. I have written about Snowden before:  https://wcoats.wordpress.com/2013/12/24/the-year-of-edward-snowden/    I recently viewed the movie “Snowden” and the documentary about the same events called “Citizenfour” and highly recommend both. The Heritage Foundation has contributed to this discussion in the following half-day seminar. http://www.heritage.org/events/2016/10/cybersecurity I particularly recommend the opening session with Michael Hayden, who makes a number of interesting and thoughtful observations.

The level of discussion, which is to say the lack of serious discussion of these issues, in the American Presidential campaign is distressing. I am reassured that some very bright and thoughtful people are discussing them. In addition to the Heritage seminar cited above, the New American Foundation recently held an all day seminar on these issues that started off with an excellent presentation by Andrew J. Bacevich (starting at about 24 minutes into the video)


We can not remind ourselves often enough that “the price of liberty is eternal vigilance.” And, we should add, courage.

The Year of Edward Snowden

I am increasingly in awe of what Edward Snowden, at great personal risk, has done for our country. One of the three original journalists to whom he gave documents, Barton Gellman, has written the following article for the Washington Post. Edward Snowden after months of NSA revelations says his missions accomplished/2013/12/24  Every American who cares about the future of our country should read it. I have blogged a number of times this year about Snowden if you would like to read more.

Some people confuse the technical and legal ability to collect personal information about targeted individuals under well-developed controls, with the data mining searches for needles in haystacks Snowden exposed. Here are just two of his statements from the article:

“I don’t care whether you’re the pope or Osama bin Laden. As long as there’s an individualized, articulable, probable cause for targeting these people as legitimate foreign intelligence, that’s fine. I don’t think it’s imposing a ridiculous burden by asking for probable cause. Because, you have to understand, when you have access to the tools the NSA does, probable cause falls out of trees.”

“I believe the cost of frank public debate about the powers of our government is less than the danger posed by allowing these powers to continue growing in secret,”

Snowden likened the NSA’s powers to those used by British authorities in Colonial America, when “general warrants” allowed for anyone to be searched. The FISA court, Snowden said, “is authorizing general warrants for the entire country’s metadata.”


Two articles on the same page of Tuesday’s Washington Post reported on similar activities from opposite perspectives. In one, “A 28-year-old British man whom prosecutors described as a ‘sophisticated and prolific computer hacker’ has been charged in connection with cyberattacks in which he illegally accessed the personal information of U.S. soldiers and government employees, and obtained other information about budgets, contracts and the demolition of military facilities, authorities said Monday.” Why did he do it? Why do such people do such things? For commercial/financial gain? In this case, it seems, the motivation was political, though I am not sure what the political point was. “British-man-described-as-prolific-hacker-indicted-in-cyberattacks-on-us-agencies/2013/10/28/”

The second article discussed the NSA program to eavesdrop on friendly heads of state, such as German Chancellor Angela Merkel, launched in 2002. President Obama apparently did not know the extent and details of such surveillance until very recently nor did Sen. Dianne Feinstein, who oversees the NSA as the Senate Intelligence Committee chair. Why did they do it? “Their [NSA staff] job is to get as much information for policymakers as possible,” a senior administration official said. “They’re used to coming at this from the other direction — that is, being criticized for not knowing enough. This is a new dynamic for them.” “Obama-didnt-know-about-surveillance-of-us-allied-world-leaders-until-summer-officials-say/2013/10/28/”

In the first case, we were angry and in the second case Chancellor Merkel and most of Europe were angry and both with good reasons. We want our intelligence agencies to collect all of the information needed to protect us from harm. All countries spy on each other, but the tools and activities of espionage agents are potentially double-edged swords. Because of the potential dangers of turning these tools on our own citizens (and friends) for political advantage, strict limits have been placed on domestic surveillance and our allies might have assumed they were spared as well.  Unfortunately following the 9/11 attacks many American’s were more concerned about security than privacy and liberty and willing to move the balance away from protecting privacy.

When these systems of spying were first developed, those using them had (I assume) the best of intentions—gathering information from and on enemies to help protect the nation. And this is exactly what we wanted from them. Whether it is really possible to detect useful information from the millions upon millions of messages (verbal and electronic) being collected is an interesting question, however. Targeting specific individually is dramatically easier than looking for needles in massive data haystacks, but the heads of state of our allies?

Those who work for the NSA and other intelligence agencies are surely motivated by the highest objectives. But what do good people do when they have such access to information on the private activities of those they don’t like politically—republican’s able to browse around in the private affairs of democrats and visa versa?  IRS agents abusing their power against Tea Party organizations comes to mind, for example. Snowden has shown us that as time has gone on the temptation to use more widely the enormous capability available to our intelligence agencies has grown. And not one hundred present of our government officials are always honorable to begin with.  In the following article in The Washington Post, Harold Meyerson quotes the WSJ as follows: “The agency [NSA] has been rebuked repeatedly by the Foreign Intelligence Surveillance Court for misrepresenting the nature of its spy programs and for violating the court’s confidential orders.” “A-turbulent-spy-agency/2013/10/29/”

On top of this, the government’s insistence that American Internet access providers and large data collectors leave back doors through which the NSA can enter to collect data, has reduced Net security against the likes of the British hacker mentioned in my opening paragraph. Fortunately, once again, when things go too far there is a backlash. Even Senator Feinstein is saying stop.

Edward Snowden

Edward Snowden continues to amaze me and to rise in my admiration (see his interview by the New York Times). “Snowden-says-he-took-no-secret-files-to-Russia” 

He most certainly violated his pledge and the law, but the thoughtfulness and care with which he has revealed very selective documents contrasts very sharply with the damaging data dump of Chelsea Manning (AKA Bradley). Manning, who never convincingly explained what he thought he was doing or why, impeded the flow of candid information and discussion within the U.S. government (e.g. in cables between our embassy’s and the State Department). This will make future diplomacy more difficult.

Snowden, on the other hand, who revealed information gathering programs and their assessments rather than the content of information collected, has thankfully forced more open discussion of what tools the government has and how they should be used. He has risked his own future in the heroic service of the higher interests of his (and my) country.  Richard Cohn expresses these views very well in a recent Washington Post oped: “Snowden is no Traitor/2013/10/21/”

Our government has been caught lying repeatedly in connection with its spying activity. https://wcoats.wordpress.com/2013/08/20/abuse-of-power/  In many respects this is an expected part of the game with regard to enemies we wish to protect ourselves from. But the law sets important limits and safeguards on the government when it comes to spying on its own at home or friends abroad (e.g. the President of Mexico, 70 million French phone records per month, etc). Records revealed by Snowden document that these are being violated as well.

Last week I attended a fascinating discussion at the Brookings Institute between Matt Apuzzo, Investigative Reporter for The Associated Press and author with Adam Goldman of Enemies Within: Inside NYPD’s Secret Spying Unit and Bin Ladin’s Final Plot Against America (Touchstone, 2013), and Bruce Riedel, Director, The Intelligence Project, Senior Fellow, Foreign Policy, Saban Center for Middle East Policy, Center for 21st Century Security and Intelligence. Apuzzo and Goldman’s book is a spy thriller account of the only specific case revealed by the government of the 50 potential attacks they claim their programs helped prevent. The government thwarted the September 2009 al Qaeda terrorist plot – led by Najibullah Zazi, an Afghan-American – to attack the New York City subway system. Without taking a position on whether NSA and related domestic spying activities helped with this case, Mr. Apuzzo reported that the link to the would be terrorist came as the result of an email he sent to a known British terrorist. This was enough to enabled the government to monitor Mr. Zazi’s communications on the basis of older and established intelligence authorities without resort to the more intrusive programs reveals by Snowden. So the government lied to us again.

The natural tendency of government is to grow and to expand their authority. Whenever our government seemed to go too far, American’s have pushed back. Edward Snowden has alerted us to the need to push back again and I am very grateful to him for that.

Turning a corner on the invasion of privacy?

In a small step to improve transparency, the U.S. government has released a two-year-old opinion by its secret Foreign Intelligence Surveillance Court revealing that “the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans” The Washington Post, Aug 22, 2013. Perhaps it was pushed to preempt Edward Snowden from doing so before it did. But it was also in response to a year old Freedom of Information lawsuit by the Electronic Frontier Foundation.

“It’s unfortunate it took a year of litigation and the most significant leak in American history to finally get them to release this opinion,” said foundation staff attorney Mark Rumold, “but I’m happy that the administration is beginning to take this debate seriously.”

In the October 3, 2011, opinion, John D. Bates, then the surveillance court’s chief judge, wrote: “The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program…. NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.” Bates also noted that the court’s authorization of the NSA’s bulk collection of Americans’ phone-call records was “premised on a flawed depiction of how the NSA” uses the data. “This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and court-mandated oversight regime.”

That is a mouth full and it is encouraging that the government has finally shared the court’s opinion with the public. It is in sharp contrast with the disclaimers of any wrong doing it was issuing a few weeks ago.