The case of Edward Snowden raises many questions. Do we need the surveillance programs he disclosed to mitigate the threat of terrorism? Do those programs intrude excessively on individual privacy? If we need them, and the intrusions on privacy are not too great, was it appropriate to keep them secret? Is their effectiveness compromised by public disclosure? Could they have been disclosed in another way? If not, was Edward Snowden justified in disclosing them unilaterally?
The answers to the first two questions depend on each other. If the surveillance programs of the National Security Agency provide real protection against terrorism, many of us would put up with a substantial intrusion on our privacy. On the other hand, if those programs are not shown to protect us, our tolerance for government snooping would decline commensurately.
We regularly give up some portion of our privacy–as when we submit to screening before boarding a plane–if the intrusion seems minimal and the benefit, in the form of safety, seems substantial. When the invasion of privacy is greater, we have heightened concerns. Many of us think that maintaining limits on the power of the state to gather and store information on our thoughts, our bodies, our relationships, and certain other aspects of our lives, is important. We want strict controls on such practices.
In thinking about these questions, Americans should be aware of the sorry history of political surveillance in the United States. Surveillance by the federal government began in 1908 with the establishment of the Bureau of Investigation in the Department of Justice (later the Federal Bureau of Investigation, or FBI). During World War I, the Bureau gathered information on those opposing American entry into the war or opposing the draft, leading to many hundreds of prosecutions under the 1917 Espionage Act and the 1918 Sedition Act. Large numbers were sent to prison for five, 10, or even 20 years for peaceful dissent.
Following the war, the Bureau stepped up its surveillance, focusing on labor activists, aliens, and suspected communists and anarchists, leading to dragnet arrests of thousands and the summary deportations of hundreds. In 1924, the Justice Department imposed some limits on the FBI, but most restrictions were ended about the time World War II started in Europe in 1939. From then until shortly after the death of long-time FBI Director J. Edgar Hoover in 1972, political surveillance dominated the work of the FBI. Its activities included extensive programs to harass and disrupt the lives and organizations of leftists, civil rights advocates, anti-war activists, and many others. Political surveillance peaked during the Nixon Administration. Disclosures by whistleblowers of that era and the Watergate scandal helped lead to a number of Congressional investigations.
So far as we now know based on Snowden’s revelations, the NSA has neither engaged in the politically targeted practices of an earlier era nor in the harassment of political dissenters. That makes its activity a great deal less objectionable than what took place previously. On the other hand, in collecting metadata on virtually every phone call in the United States in recent years, the NSA has compiled information that could reveal a great deal about us. As US Supreme Court Justice Sonia Sotomayor pointed out in an opinion in a 2012 case not involving terrorism, it can reveal calls “to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar, and so on.” As there is no way to guarantee that we will never again have officials like J. Edgar Hoover or Richard Nixon, the availability of such information on all of us is not a comforting thought for those concerned about privacy.
So what have we gotten in return? According to the December 12 report of an independent review group appointed by President Obama, the information leaked by Snowden “was not essential in preventing attacks.” Similarly, the federal Privacy and Civil Liberties Oversight Board, a bipartisan body, said in its report on January 23 that “we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.” Why should Americans sacrifice their privacy if this is not helping to prevent terrorism?
There may be more to be said on this issue. NSA officials insist that the programs have helped to prevent
terrorist attacks. So far, key members of the Senate Intelligence Committee and President Obama have
endorsed this view. They should come forward with the evidence needed to make their case. The main argument for secrecy is that, knowing about these practices, would-be terrorists will conduct themselves in a manner to avoid detection.
But this flies in the face of what we know about other forms of surveillance. We know that when there is a visible police presence on the street, it deters crime. Surveillance cameras, which are ubiquitous in cities in the United Kingdom and increasingly in the United States, are not hidden. Everybody sees them and, reportedly, this also deters crime. The screening at airports is not secret. Because we know we must pass through a device that will detect metal, most of us refrain from carrying forbidden objects on to a plane. By keeping us from even trying to carry weapons on board, screening makes us more safe, not less.
It may well be the same for the NSA’s electronic surveillance. Knowing that calls are monitored probably prevents many such calls. If prospective terrorists thought they could make calls without risk, they would make more such calls. Perhaps they would be caught, perhaps not. The NSA cannot guarantee it will recognize the significance of every call. Deterring most calls by terrorists and catching some that are made despite the risks seems a better strategy. Also, of course, knowing that our calls are monitored is essential to us in knowing about the intrusions on our privacy and judging whether they are worthwhile.
Though the NSA has apparently limited itself to collecting metadata on Americans except when monitoring the content of calls is specifically authorized by a court order, it recognizes no such limits on its spying outside the United States. The activity revealed by Edward Snowden that has created the greatest embarrassment is its eavesdropping on the calls of Brazilian President Dilma Rousseff and German Chancellor Angela Merkel. The NSA has not bothered to claim that this had any national security purpose, nor has it provided any explanation for listening to their conversations. Perhaps it indicates that some of the NSA’s activities are driven as much or more by an interest in flaunting the institution’s capacity for electronic surveillance than by concern for the prevention of terrorism. Among the few reforms that President Obama proposed in his January 17 address on these issues was that “unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies.”
Putting aside questions about the value of the NSA’s metadata program in preventing terrorism, and whether disclosure has compromised its effectiveness, the question remains whether Edward Snowden was justified in disclosing these activities.
I think that a strong argument for defending his disclosures is that the government did more than keep secret the NSA’s electronic surveillance. It also gave out false information. At a hearing of the Senate Intelligence Committee in March 2012, James R. Clapper, the Director of National Intelligence, said that the NSA did not intentionally collect information on the phone calls of Americans. Clapper knew, and at least some of the Senators present knew, that the NSA had collected metadata on virtually every phone call in the US for the past several years. That is, Clapper lied, and his lie was not challenged by some who knew better. There is no indication that his false testimony to Congress jeopardized his position. The Obama Administration was willing to let the false testimony stand, indicating that it’s fine for a high-level official to deceive the public about such matters. Snowden made public information that exposed the deception; that was a public service.
Aside from President’s Obama pledge to discontinue some of the spying on foreign leaders, the most important reform proposed thus far by the President was that he would ask Congress “to authorize the establishment of a panel of advocates to provide an independent voice [on privacy issues] in significant cases” before the secret Foreign Intelligence Surveillance Court that deals with the National Security Agency. That is a welcome proposal. Someone ought to speak up for privacy.
What matters much more, however, is enabling citizens to know more about what the government is doing that is supposed to protect them against terrorism, and to what extent it is invading their privacy in the process, so they can form their own opinions on whether they are getting a good deal. As no one else has provided us with this information, we should be grateful to Edward Snowden for giving us at least some of the information we need to decide for ourselves.
Aryeh Neier is the president emeritus of the Open Society Foundations.