The danger of American apathy on NSA surveillance

Little by little, Americans are allowing their government to chip away at the fortress of legal protections that people in less-privileged societies – including multiple nations in the Arab world – are giving their lives to build.

The director of National Intelligence today declassified and released documents describing the National Security Agency’s (NSA) “bulk collection” of Americans’ telephone records as taking place “on a very large scale.” Last week, the House of Representatives voted by a razor-thin margin to allow this practice to continue. The vote aptly reflects Americans’ polarized response to revelations about the NSA’s activities. Half the country is incensed by the secret spying. The other half, however, appears to have heeded Senate Majority Leader Harry Reid’s now-famous advice to “just calm down and understand that this isn’t anything that is brand new.”

Among this latter group, there is a sense that privacy advocates are making much ado about nothing. The NSA’s data collection programs were approved by federal judges; Congress knew about them; they’re used only to identify terrorists. What, exactly, is the big deal?

The most obvious answer is that these programs may be illegal. The government admits it obtains Americans’ telephone records in bulk, but claims officials do not examine them unless there is reason to suspect a terrorist link. Section 215 of the Patriot Act, however, requires the government to establish a record’s investigative relevance before obtaining it – not after. The PRISM program, which collects information from Internet service providers, is ostensibly legal because it “targets” foreigners. But the program tolerates extensive “inadvertent” and “incidental” collection of Americans’ information – including information the government needs a warrant to obtain under the Fourth Amendment.

Yes, a secret court approved these programs. That should not start and end the discussion about their legality. Judges make mistakes, and – as recent reporting on the secret Foreign Intelligence Service Act (FISA) Court has underscored – they are far more likely to do so when they hear only the facts and arguments that one side chooses to present. When citizens have gone to the regular courts to challenge government surveillance, the government has successfully argued that the courts cannot even consider their claims.

The programs also threaten Americans’ privacy. It is disingenuous for officials to characterize the “metadata” being collected as mere phone numbers. Sophisticated computer programs can glean volumes of sensitive information from this metadata about people’s relationships, activities, and even beliefs. The government knows very well how revealing call records can be; that is why it considers the program so valuable.

Serious as they are, these concerns fail to explain fully why Americans should care. After all, this remains a remarkably free country. There are exceptions. Muslim Americans, who are singled out for scrutiny by some law enforcement agencies, have reported harassment by customs officials as well as a chilling of political and religious activity. Outside of these communities, though, few Americans feel any tangible effects from increased surveillance. The vast majority of law-abiding citizens go about their lives without fear of government persecution.

And that may be the problem. Free societies tend to take their freedom for granted. But our liberties do not derive from the innate trustworthiness of our elected representatives. They derive from laws and institutions put in place for the preservation of liberty. These laws and institutions, some version of which can be found in all democratic societies, are relatively recent innovations in human history. Before their advent, tyrannies and dictatorships were the norm. Even today, in countries without this framework, people are not free.

Since 9/11, the laws and institutions created to ensure Americans’ freedom have been weakened – sometimes incrementally, sometimes significantly – at a rapid pace. This is particularly true for limitations on surveillance, a power that carries tremendous potential for abuse. National Security Letters, a form of administrative subpoena, are now available to collect any information “relevant” to a terrorism investigation, not just information about potential suspects. Customs agents no longer need reasonable suspicion of wrongdoing to search citizens’ laptops at the border. Americans’ international communications are now subject to wiretapping without an individualized court order. The list goes on.

In any given instance, the government can make the case that the change is small, or that it is justified by increased security. In some cases, the argument may be persuasive. It is the trend, however, that should concern us. Twelve years after 9/11, as the nation approaches the date for withdrawing troops from Afghanistan, the quiet erosion of Americans’ civil liberties continues.

That doesn’t mean the US government should never expand surveillance authorities, or that Americans should resolve all trade-offs between liberty and security in favor of liberty. After all, the United States is a long way from a dictatorship. But given the post-9/11 trend of diminishing legal protections, Americans should not make these choices lightly. And each additional broadening of the government’s powers must be a matter of choice – not passive acquiescence to a secret expansion. When that choice is taken from the citizenry, it is no occasion to “calm down” and look the other way.

Elizabeth Goitein is co-director of the Liberty and National Security program at the Brennan Center for Justice at New York University School of Law.