Monday, June 10, 2013

Deep Thoughts on the NSA. . .

Via Twitter and a few trusted blogs, I've been following the NSA "scandals" of recent days, and I've been troubled to say the least.  There are a number of practical and not-so-practical issues the result from the recent disclosures to the world via Edward Snowden.

First, it should be noted that the recent revelations about what the National Security Agency has done can't really be described as a scandal.  The NSA performed searches of phone metadata (who you called, where you were when you called, and how long the phone call lasted), and internet data on a massive scale because current law lets the NSA do so.  Both the Federal judiciary and Congress have been briefed on these activities, and the judiciary specifically authorized the NSA to take part in these activities (as far as I can tell).  In other words, what we have here isn't so much a scandal as it is a policy choice that was enacted into law, and has been overseen by all branches of the government.  

But with all that said, the question remains whether the NSA should be able to snoop on individuals at this level.  Unfortunately, because the NSA's activities are necessarily secret, we as Americans can't debate them the way we would with any other policy decision.  So, in that context, what Snowden did was important.  We are now asking important questions about these programs.

So, where do I stand? I tend to have a different view of the Constitution than most - I don't think there is a right to privacy in the Constitution.  The Constitution's framing is all about who has what power, rather than who gets to find out who's doing what.  To that end, I think the Constitution grants individuals the right of self-sovereignty - the right to speak their minds, practice their own religion, write blogs and newspapers, be secure in their bodies, homes and belongings, and be free from interference unless the government has a good cause.  And in that context, what the NSA's collection of metadata from cell phones is important, but ultimately not interfering with people's lives.   

Where I do have a problem is with the collection of interpersonal communications on what appears to be a massive level.  Not because a lot of that information is secret - after all, the whole point of this blog, my Facebook account, and my Twitter feed is to broadcast my life - but rather, because, as an attorney, I have a duty to keep my communications with clients secret.  If the NSA is reading my emails, then how can I claim these emails are privileged communications?  Unfortunately, its a grey area, and I'm concerned.

Of equal importance is how the data is used.  What if the NSA, looking for terrorists, discovers a medical marijuana ring, or (much, much, more likely) a NCAA Tourney pool?  In either instance, the NSA would receive evidence of a federal crimes. Or, what if the NSA was able to determine who belongs to the Republican Party or the Democratic Party?  Could an Administration use this information to maintain power?  Um, probably.  

So there needs to be a discussion and some clear ground rules as far as what the data can and can't be used for.  Ideally, it's used only when someone is planning to attack U.S. civilians, and otherwise destroyed.  Certainly, this kind of information is important, and might've prevented 9-11, but as I said, I'm concerned, but I'm also glad we are having the discussion.

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