Abstract
This chapter deals with the issues that followed from the disclosures in 2013 about the National Security Administrations (NSA) two surveillance programs. One, known as Bulk Collection of Telephone Metadata, collects, stores, and analyzes the records of a significant portion of the phone calls made and received in the United States (from here on, this program will be referred to as phone surveillance). The other, known as PRISM, collects private electronic communications from a number of online providers such as Google and Facebook and is focused on non-Americans.1 This chapter focuses on the specific issues raised by these two programs, although both programs have attributes and raise issues that are also relevant to other national security programs. I draw on a liberal communitarian approach in its assessment of the issues at hand. Section A of this chapter discusses this approach. Section B responds to critics of the programs who hold that such surveillance is neither needed nor effective. Section C examines the specific grounds on which phone surveillance has been criticized and justified. Section D lays out a similar analysis regarding the PRISM program. Section E examines the alternative ways both surveillance programs may be better controlled, on the grounds that the more the government conducts surveillance the more it needs to be watched.
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Notes
See Amitai Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (New York: Basic Books, 1996).
I have previously discussed this balance in the context of privacy and public health, public safety, sex offenders, and freedom of the press, among other rights. See Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999); “The Privacy Merchants: What Is To Be Done?” Journal of Constitutional Law 14, 4 (2012): 929–51; and How Patriotic Is the Patriot Act?: Freedom Versus Security in the Age of Terrorism (NY: Routledge, 2004).
Gerald Gaus and Shane D. Courtland, “Liberalism,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), http://plato.stanford.edu/entries/liberalism/. See also, John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1999).
For a broader discussion of this strand of communitarianism, see Russell A. Fox, “Confucian and Communitarian Responses to Liberal Democracy,” The Review of Politics 59, 3 (1997): 561–92. See also, Daniel Bell, “Daniel Bell on Confucianism and Free SpeechSpeech,” audio interview with Free Speech Debate, (February 16, 2012), http://freespeechdebate.com/en/media/daniel-bell-on-confucianism-free-speech/; and
Francis Fukuyama, “Confucianism and Democracy,” Journal of Democracy 6, 2 (1995): 20–33.
Jed Rubenfeld, “The Right of Privacy,” Harvard Law Review 102, 4 (1989): 740. The development of a right to privacy with respect to torts dates back a bit further to 1890 with the publication of Warren and Brandeis’s “The Right to Privacy.” See
Richard A. Posner, “The Right of Privacy,” Georgia Law Review 12, 3 (1978): 409. See also
Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, 5 (1890): 193–220. The exact emergence of the notion of a Constitutional right to privacy is a bit more difficult to exactly pinpoint. For more genealogy of constitutional right, see William M. Beaney, “The Constitutional Right to Privacy in the Supreme Court,” The Supreme Court Review (1962): 212–51.
Anthony Lewis, Freedom for the Thought We Hate: A Biography of the First Amendment (New York: Basic Books, 2007), 23.
See Matthew Kroenig and Barry Pavel, “How to Deter Terrorism,” The Washington Quarterly 35, 2 (2012): 21–36, http://dx.doi.org/10.1080/0163660X.2012.665339: “In contrast [to the Cold War], deterrence against terrorism can only be partial at best. The United States cannot deter all terrorist activity, but as long as Washington can deter certain types of terrorists from engaging in certain types of terrorist activity, deterrence can contribute to national security goals.”
Robert Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2006) ch. 2 and 5.
Lucian E. Dervan, “The Surprising Lessons from Plea Bargaining in the Shadow of Terror,” Georgia State University Law Review 27, 2 (2011): 239–98.
See, for example: Mark A. Rothstein, “Privacy and Technology in the Twenty-First Century,” University of Louisville Law Review 52 (2014): 333, 339.
John Mueller and Mark G. Stewart, “Secret without Reason and Costly without Accomplishment: Questioning the National Security Agency’s Metadata Program,” I/S: A Journal of Law and Policy for the Information Society 10, 1 (2014): 407.
See Mark D. Young, “National Insecurity: The Impacts of Illegal Disclosures of Classified Information,” I/S: A Journal of Law and Policy for the Information Society, 10, 1 (2014): 367: “The complexities, technology, and ambiguity of the modern security environment make it unlikely that any single intelligence source or program will provide a “smoking gun” on a national security threat […] To overcome these realities, the Intelligence Community must apply a dizzying set of analytic techniques […] This is no small task and it requires a mosaic of information, to include bulk metadata.”
Peter L. Bergen, The Osama bin Laden I Know (New York: Free Press, 2006), 397; Jason Burke and Ian Black, “Al-Qaida: Tales from Bin Ladens Volunteers,” The Guardian, September 10, 2009, http://www.theguardian.com/world/2009/sep/10/al-qaida-terrorism-bin-laden; Matthew Schofield, “Osama bin Laden Was Angry, Increasingly Irrelevant in Final Years, Letters Show,” McClatchy, May 3, 2012, http://www.mcclatchydc.com/2012/05/03/v-print/147573/letters-show-bin-laden-was-angry.html.
Information voluntarily handed over to another party does not receive Fourth Amendment protection “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976); see also, Orin Kerr, “The Case for the Third Party Doctrine,” Michigan Law Review 107 (2009): 561, 569–70. Earlier cases that built up this doctrine include Lee v. United States 343 U.S. 747 (1952) and Couch v. United States 409 U.S. 322 (1973).
Matthew Tokson, “Automation and the Fourth Amendment,” Iowa Law Review 96 (2011): 581, 586.
Eve Brensike Primus, “Disentangling Administrative Searches,” Columbia Law Review 111 (2011): 256, http://www.columbialawreview.org/wp-content/uploads/2011/03/111–2_Primus.pdf
Jeffrey Rosen, “The Naked Crowd: Balancing Privacy and Security in an Age of Terror,” Arizona Law Review 46 (2004): 613.
Christopher Slobogin, “Government Data Mining and the Fourth Amendment,” The University of Chicago Law Review 75 (2008): 317, 320.
Mary Lynn Nicholas, United States v. Verdugo-Urquidez: Restricting the Borders of the Fourth Amendment, Fordham International Law Journal 14/1 (1990): 270.
Richard B. Lillich, as quoted in David Cole, “Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?” Georgetown Law Faculty Publications and Other Works 297 (2003): 372, http://scholarship.lawgeorgetown.edu/facpub/297.
William A. Schabas, “Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?” Brooklyn Journal of International Law 21 (1995): 277, 280, as quoted in Kristina Ash, “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence,” Northwestern Journal of International Human Rights (2005), http://scholarlycommons.lawnorthwest-ern.edu/cgi/viewcontent.cgi?article=1018&context=njihr.
Corey M. Then, “Searches and Seizures of Americans Abroad: Re-examining the Fourth Warrant Clause and the Foreign Intelligence Exception Five Years After United States v. Bin Laden,” Duke Law Journal 55 (2005): 1064.
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© 2015 Amitai Etzioni
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Etzioni, A. (2015). Balancing National Security and Individual Rights. In: Privacy in a Cyber Age. Palgrave Macmillan’s Studies in Cybercrime and Cybersecurity. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137513960_9
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DOI: https://doi.org/10.1057/9781137513960_9
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