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Privacy vs. National Security

-- By RasheedAhmed - 24 Apr 2016

Should Americans relinquish a portion of their privacy rights in exchange for greater security? This question has been debated extensively and the answer seems to revolve around the value one places on protecting individual privacy rights vs robust national security. Additionally, another key factor in this debate is the overall trust one has in the government to fill necessary intelligence gaps while protecting privacy rights of citizens. This debate was magnified in the wake of the September, 11 terrorist attacks. After the 9/11 attacks, as a response to strengthen national security, the NSA was permitted to begin a “bulk telephony metadata program conducted under Section 215 of the USA Patriot Act”. In order to access the stored metadata, extreme caution and specific requirements had to be met. In particular, the government was required to sufficiently show a “reasonable articulable suspicion” that a phone number is associated with terrorism.

This essay will examine the origins of collecting such meta data, the changes in the program under President Obama’s presidency and the constitutional challenges in utilizing metadata to combat terrorism. When analyzing the constitutional challenges, this essay will focus on shifting the standard from “reasonable articulable suspicion” to “probable cause”, the higher standard required under the Fourth Amendment to the United States Constitution.

The Joint Inquiry into Intelligence Community Activities was an inquiry conducted by the Senate and House into the activities of the U.S. Intelligence Community in connection with the September 11, 2001 attack. This report was released in December 2002. In a debate on “Privacy vs. Security” hosted by CPAC, General Mike Hayden, Former Director of the National Security Agency (NSA) explains to the audience how the report revealed that the NSA was “far too conservative when it came to the most important terrorist communications; terrorist’s communication, one end of which was in the United States”. At the behest of President George W. Bush, the NSA was mandated to be better able to respond to this particular type of threat. In response, the NSA then looked for the “gentlest choice” available. As General Mike Hayden stated in the CPAC debate, the NSA looked for “the option that would squeeze American privacy the least in terms of responding to that particular threat”.

The gentlest approach adopted was to collect metadata in bulk. Metadata can be defined as information about a communication. More specifically, information about: to whom and from a call was made, when a call was made and for how long. The government maintained that collecting metadata in bulk provided “important lead information for investigation into terrorist threats by making call detail records available to the Intelligence Community to aid in the investigation of these threats”. The more critical constitutional point being that such metadata only contains information about the fact of calls, but not the content. The potential harms from such a program is clear. The bulk collection of metadata afforded the NSA far too much power.

As a partial response to leaked documents by whistleblower Edward Snowden, President Obama signed the “USA Freedom Act” in the Summer of 2015, effectively moving storage of bulk telephone metadata used by the NSA to telecommunication companies rather than the government. Although this modest change is a step in the right direction, the potential for abuse is clearly still present. In a piece written by Ewen MacAskill? of The Guardian, MacAskill? states that “a privacy and civil liberties review body set up by Barack Obama found no evidence that bulk data collection had made a difference in a single case”. With only marginal utility, sufficient safeguards and requirements should be sought in order ensure the protection of privacy rights. The next step should be to raise the standard the government must meet to access metadata from “reasonable articulable suspicion” to “probable cause”.

Which standard better protects the privacy rights of American Citizens while still achieving the marginal utility provided by the metadata program? The answer has already been provided to us via The Constitution of the United States of America. In an article written by Judge Andrew Napolitano, the judge forcefully and effectively argues that reliance should be placed on the Constitution. Judge Napolitano states, “The Constitution is the supreme law of the land. It applies in good times and bad, in war and in peace. It regulates the governed and the governors. Yet if the government that it regulates can change it by ordinary legislation, then it is not a constitution but a charade”. We must look to the Fourth Amendment to the United States Constitutions which is controlling authority.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. In order to seize the phone records of American citizens, the NSA must sufficiently show probable cause that a phone number is associated with terrorism. This higher standard helps ensure that the government does not overstep its authority while still achieving its national security goals. The lower standard, reasonable articulable suspicion, does not achieve such a result and allows for unfettered abuse. This potential for abuse is even more problematic when you acknowledge the NSA’s complete lack of transparency.

What prompted the Obama administration to allow Section 215 of the Patriot Act to expire? The reform under the Freedom Act can be directly linked to a document leaked by Eric Snowden. The document was a classified court order revealing the NSA was collecting in bulk the phone records of citizens both in the US and overseas. This complete lack of transparency is a crucial issue and magnified to a greater degree given that it contradicted a statement made by James Clapper, the current director of national intelligence, to a Senate committee. Clapper assured the Senate committee that there was no such collection of the records of US citizens.

What answers do we have in solving this problem? The answer lies within The Constitution.

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