Surveillance and American Liberty

CAMBRIDGE – Ever since Edward J. Snowden disclosed the National Security Agency’s ongoing collection of massive amounts of electronic-communications data generated by United States citizens and non-citizens alike, attention has been lavished on his personal status. But the more important issue, even before Russia granted him temporary asylum, is the status of American civil liberties. Is the US guilty of hypocrisy, as Russia, China, and others have charged?

To answer that question, it is important to distinguish between two issues that have become conflated in public debate: electronic espionage against foreign entities and domestic surveillance of a government’s own citizens.

Before Snowden’s disclosures, cyber espionage had become a major point of contention in US-China relations. It was discussed at the June “shirt-sleeves summit” between Presidents Barack Obama and Xi Jinping, and the two governments agreed to create a special working group on the issue.

The US accuses China of using cyber espionage to steal intellectual property on an unprecedented scale. Among other public sources, it could point to a study by the cyber-security firm Mandiant, which traced many such attacks to a People’s Liberation Army facility in Shanghai. China counters that it is also the victim of innumerable cyber intrusions, many originating in the US.

Both countries have a point. If a proverbial Martian were watching the flow of electrons between East Asia and North America, he would probably notice robust two-way traffic. But if he looked inside the data packets, he would see very different content.

American policy is not to steal intellectual property, while China’s policy appears to be the opposite. At the same time, both governments constantly hack into each other’s computers to steal traditional political and military secrets. Spying is not a violation of international law (though it often violates various domestic laws), but the US argues that theft of intellectual property violates both the spirit and letter of international trade agreements.

China is not the only country that steals intellectual property. Some of America’s allies, now professing outrage at disclosures of US spying, have been known to do the same thing to the US. According to the US, when it inspects a non-American’s e-mail, it is searching for terrorist connections, and has often shared the findings with its allies.

In that sense, security surveillance can benefit both the US and other countries. After all, part of the plot that culminated in the terrorist attacks of September 11, 2001, was hatched by an Egyptian living in Hamburg.

But the Americans are not without sin. As Snowden’s information revealed, the US was monitoring the communications of European Union representatives as they were preparing for trade negotiations. This did not produce a joint benefit; it was a bad decision, and one that Obama should renounce.

It is tactically useful for Russia, China, and others to conflate espionage issues with civil liberties and accuse the US of hypocrisy. But those charges seem odd coming from countries with weak rule of law and heavy Internet censorship.

Snowden revealed two major surveillance programs inside the US. In terms of civil liberties, examining the content of a message from a suspect non-American source is less controversial. The more hotly debated program is one in which the NSA maps the origin and destination of US citizens’ telephone traffic and stores it for possible later inspection (presumably with a court order). This application of technological capacity to store what is called “big data” raises a new set of issues about intrusion into citizens’ privacy.

Defenders of the program point out that it is consistent with current law and with America’s constitutional philosophy of checks and balances, because both the legislative and judicial branches approved it. Opponents argue that the court created in 1978 under the Foreign Intelligence Surveillance Act (FISA) was designed for an era before the advent of big data, and that current practice stretches the provisions of the Patriot Act, passed after the September 11 attacks.

The opponents call for new laws. Last month, the current legal framework survived a close vote (217 to 205) in the House of Representatives. Most interesting was the split in both parties. The opposition consisted of a coalition of conservative Tea Party Republicans and liberal Democrats. The issue is bound to arise again, with several pending bills proposing revisions of the FISA court.

Rather than demonstrating hypocrisy and acceptance of the erosion of civil liberties, the Snowden disclosures have provoked a debate that suggests the US is living up to its democratic principles in its traditionally untidy ways. America faces a trade-off between security and liberty, but the relationship is more complex than it appears at first glance.

The worst threats to liberties come when insecurity is greatest, so modest trade-offs can sometimes prevent greater losses. Even such a great defender of freedom as Abraham Lincoln suspended habeas corpus under the extreme conditions of the American Civil War. And such decisions may not be recognized as mistaken or unjust until later – consider Franklin Roosevelt’s internment of Japanese-American citizens early in World War II.

In the decade after September 11, 2001, the pendulum of public sentiment swung too far to the security pole; but it has begun to swing back in the absence of major new terrorist attacks. A recent ABC News-Washington Post poll showed that 39% of Americans now say that protecting privacy is more important than investigating terrorist threats, up from only 18% in 2002.

Ironically, the programs that Snowden revealed seem to have helped prevent massive new terrorism events, such as a bomb attack on the New York subways. If so, they may have prevented the implementation of more draconian anti-terrorist measures – thus enabling the current debate.