Thanks to the hijinks of Edward Snowden, and just this week, the news that a group of eight tech giants, including Google and Microsoft, are asking for governments worldwide to address surveillance of individuals and data access regulations, the public’s attention is again focused on how the Federal government goes about protecting Americans against potential terrorist threats.
So a recent debate about the Federal government’s data collection, which some folks call domestic espionage, was quite timely. Intelligence Squared U.S., a nonprofit organization that hosts debates for NPR, and the McCain Institute for International Leadership, hosted such a debate last month — listen here. The event brought together four experts in national security, civil rights and spy craft. The two sides jousted over whether the Federal government oversteps its legal authority in the ways it works to protect American citizens against terrorist acts before they take place.
The two teams were formidable. Defending the belief that the government performs well within its legally established rights were Stewart Baker and Richard Falkenrath. Baker’s resume includes his service as the first Assistant Secretary for Policy in the Department of Homeland Security (DHS), and earlier, as General Counsel at the National Security Agency (NSA). Baker’s partner, Falkenrath, served at Homeland Security as a deputy advisor. Also, Falkenrath was the New York City Police Department’s deputy commissioner for counterterrorism.
The background of their opponents was equally impressive. David Cole, a long-time Constitutional law professor at Georgetown University, won this year’s ACLU Foundation Award for a Lifetime Commitment to Civil Liberties. His teammate, Michael German, is the Senior Policy Counsel, who works on national security and privacy issues for the American Civil Liberties Union (ACLU). Before joining the ACLU, German was an FBI special agent for 16 years. German focused largely on domestic terrorism for 12 of those years.
So in terms of expertise, the teams were fairly matched. However, their arguments clashed.
There were really two points of contention. One was the stated question for the debate, whether or not the U.S. government has the legal right to collect data for future use. The secondary issue called into question whether the government’s collection of data impinges on personal privacy.
Baker and Falkenrath, the defenders of the Federal government’s current system of data collection, made some salient points at the outset. Falkenrath noted that in the overwhelming number of incidents since 9/11, the data that triggered full scale terrorist investigations came from some sort of electronic surveillance. “A terrorist
plot is not that difficult to stop if you know about it,” he said. “Finding out about it in the first place is by far the hardest step in the process. So these (data collection) programs really do matter.”
He added, “We are advocating lawful surveillance, things which are clearly backed up by the Constitution, by statutes and by court interpretation are permissible. We are not arguing for anything unlawful.”
German, on the opposing team, countered that the real issue is whether the tools the government uses are “necessary, legal or effective.” He believes data collection, which he calls “spying,” results in the waste of security resources and fills databases with irrelevant information.
It isn’t a question of whether the government should have tools, German said, of course they should. But are they legal and effective? He used the Times Square Bomber incident as an example of data collection that didn’t protect the public. “Spying on you and spying on me makes us less free and less safe,” he said. “We know that spying on us didn’t protect us from the Christmas Day underwear bomber (or) from the Times Square Bomber. Luck is what protected us, not surveillance. ”
Baker’s repost used the very same Times Square Bomber incident as an example of a situation where data collection did protect the public. Here’s what happened.
In May 1, 2010, Faisal Shazad drove an explosives-packed Nissan Pathfinder close to Times Square and left it there. Street vendors quickly reported the car emitting smoke to the New York City police. They brought in the FBI. Investigators connected the car to Shahzad, did some research and quickly came up with the phone number that he had given Emirate Airlines when he booked a flight out of the country two days later. Then the FBI, working with Homeland Security, was able to match this information with data about Shahzad already in government databases, because he previously had been identified as a potential threat to the country.
Immediately, Homeland Security sent a notice to Customs and Border Protection (CBP) to be on the lookout for Shahzad. At the airport, CBP compared names on the lookout notice with the final list of passengers on his flight supplied by the airline just before take-off. So that is how CBP discovered that Shahzad was onboard a plane that was minutes away from leaving the country. Agents were able to detain the plane on the ground, pull Shahzad off and arrest him.
In retrospect, the airlines staff at JFK could have identified Shahzad immediately if he had bought his ticket in time for his name to be included on the government’s latest edition of the no-fly list. But through a quirk of fate, Shazad bought his ticket so close to his flight time that his purchase data wasn’t included in the latest no-fly list that would’ve flagged him for the airlines.
“He would have gotten away, but for the data, which German calls spying on everybody,” said Baker. “I would call it ‘gathering data that is already in the hands of third parties,’ the airlines.”
Okay, points for the defending team in this debate. But opponents German and Cole then brought up the Boston Marathon bombers and the Fort Hood shooting in Arkansas as other examples where the government had fallen down on the job. Although the FBI had interviewed the individuals involved, the FBI didn’t tap them as potentially dangerous before their deadly actions. Points for the opponents.
Most important to his defense of the debate proposition, Baker said personal information is safeguarded by today’s system of data collection. No one is authorized to look at the data without reasonable suspicion about an individual or group’s activity. “The only difference between a standard law enforcement search and the searches we’re talking about is that they gather information first and put it in a database,” Baker said.
“It just plain doesn’t make sense,” he said, to suggest that data should be collected only after law enforcement identifies suspicious characters, which the other debate team advocated. He pointed out that there is no law that requires a business or organization to maintain any records about individuals for any amount of time.
“So it’s necessary to gather and store information now to make sure it still exists and is readily accessible later,” Baker said. For example, some agencies track the patterns of phone calls and bank the information for instant access the next time there is an investigation. “No one looks at the data until there is a reasonable suspicion that mischief is afoot,” he said. “It wouldn’t be practical to start gathering data a bombing went off or a plane plowed into a building.”
Later in the debate, David Cole, the law professor from Georgetown, lit into the government for violating the country’s “core democracy” with its “demand” for information. “We’ve reversed that when the government demanded transparency from us but demanded secrecy about the programs they employ,” he said.
In fact, this is the way every law enforcement agency with a mandate to protect U.S. citizens operates, from a city police department to the NSA. The process and progress of their work isn’t revealed until completion. How could these agencies accomplish anything if their targets always knew which days, which hours and other details of how they were being investigated? In fact, German, who worked undercover for the FBI, pointed out that terrorist groups and individual criminals know they are under surveillance by governments and their agencies. But terrorists and criminals aren’t privy to the details of those government surveillance activities. It comes with the territory.
The development of laws government surveillance was another factor in the debate that weighed in favor of the Federal government’s surveillance system. Baker pointed out that these laws have evolved over the last 35 years and today extensively govern how, when and where data collection systems can be deployed.
“It’s hard to believe, but it’s a fact that 35 years ago there was no statutory constraint and no jurisprudential constraint on the ability of the President to conduct electronic surveillance inside the United States for foreign intelligence purposes,” said Falkenrath. “It was unfettered. Now it’s fettered quite significantly.”
Baker pointed out that the events of 9/11 galvanized the enthusiasm of government leaders to create a more cohesive system for Federal agencies to collect and share information. Two months after 9/11, Congress enacted legislation that established the Department of Homeland Security and another bill that created the Transportation Security Agency, known to most folks simply as the TSA.
Cole and German, who opposed early data collection, turned the debate to the issue of privacy versus security. They railed about how domestic surveillance requires an invasion of personal privacy, and asserted that somehow continuous data collection changes the behavior of people. German charged that everyone’s knowledge of this activity may shape their online activity. People may hesitate to go to a particular website or use a certain search term on the web, he said. “(It) does damage to the fabric of our society.”
More to the point, said Falkenrath, is that everyone voluntarily gives up a lot of their privacy when they participate in many routine activities both online and in the physical world. These include applying for credit cards or applying for a mortgage, buying a plane ticket, and of course, when we share the details of our lives on all those social media sites. “The rules governing Federal government access to private information need to be evaluated in the context of societal norms,” said Falkenrath, “and there is no question that these norms have shifted in the age of social media.”
Baker concluded, “Once we release information to other people, it’s a lot less private. So it’s only logical that when people share personal information for commercial purposes, the information also gets shared with the Federal government for security purposes.”
Who won the debate? You can listen to the debate on NPR and decide for yourselves. As for me, this battle of wits only served to reinforce my personal point of view. Go ahead, spy on me…
For a rebuttal read Mark Rasch’s Don’t Spy on Me, I’d Rather Be Safe.
Gail Bronson is an accomplished technology journalist and security start-up entrepreneur. She was the Founding Managing Editor of Bloomberg and the Founding Editor of Forbes Science & Technology section and she held stints at other publications including U.S. News & World Report and Internet Week.