Security versus privacy

Issues related to national security loom large in Washington, D.C. this week, and Colorado Sen. Mark Udall is deeply involved, demanding answers to critical questions and standing up for Americans’ constitutional right to privacy, even in telephone and electronic communications.

Among other things, Udall, a member of the Senate Intelligence Committee, disputed claims made earlier by the National Security Agency that the bulk collection of Americans’ telephone data had helped thwart 54 terrorist attacks.

An NSA official acknowledged Wednesday the actual number was 12 blocked terrorist attacks. Udall has questioned whether the bulk telephone records played any meaningful role in stopping any terrorist attacks.

Udall also declared Tuesday, “It’s possible to have privacy and security,” but the latest revelations suggest privacy remains very much in peril.

For example, the NSA finally made public Wednesday the formerly secret court order that allowed the government to see the phone records of nearly all Verizon customers in this country. It was the leak about that order by former NSA contractor Edward Snowden this spring that prompted review of NSA’s surveillance policies.

The release of the court order came just prior to National Security Director James Clapper testifying before the Senate Judiciary Committee Wednesday. During that hearing, Sen. Diane Feinstein said the phone records viewed under the court order cannot be mined for data unless a particular phone number has “a reasonable, articulable” suspicion of being connected to terrorism. But, according to The Washington Post, the court order showed that NSA may review phone data for a particular number even if there is no direct connection or suspicion of terrorism.

Also on Wednesday, Britain’s Guardian newspaper, which did the first articles on Snowden’s leaked information, reported that another NSA program called XKeyscore allows the agency “to search databases of people’s email, online chats and browsing histories” without prior court authorization or warrants.

Agency analysts seeking such information have to fill out an on-screen form, explaining the justification for the search, but the form is not reviewed by the courts or any other NSA officials before it is processed, the Guardian reported.

Army Private Bradley Manning will be going to prison for a long time for releasing classified information several years ago, and rightly so, since some critical data about U.S. troops and intelligence operatives clearly ended up in enemy hands.

Snowden’s fate is much less clear, since he remains in Russian protection for the time being. But the information he leaked has stirred up a hornet’s nest in this country. People like Udall and Sen. Ron Wyden of Oregon have been saying for some time that the NSA appeared to be abusing its authority under the Patriot Act, and needed to be reined in.

Now, others in Congress of both parties are reaching the same conclusion. We hope the information released this week prompts real action to amend the Patriot Act and to restrict these broad, constitutionally questionable searches.


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The debate over “Security versus Privacy” may ultimately be resolved simply by more sophisticated computer programming.  For example, the NSA announced that contract IT System Administrators (like Edward Snowden) will no longer have unsupervised access to the entirety of system software or contents.  A “buddy system” (as with ICBM launch protocols) is being imposed.   

Unfortunately, the Sentinel “muddies the waters” by citing “Americans’ constitutional right to privacy” – a “right” not expressly mentioned or guaranteed in our Constitution.  Rather, our Supreme Court has found an implied “constitutional right to privacy” in the “penumbra” surrounding other rights.

NSA surveillance programs implicate the “constitutional right to privacy” presumably guaranteed by the “penumbra” of the Fourth Amendment – which expressly prohibits only “unreasonable searches and seizures” and requires a “warrant” based on probable cause.

However, because the Supreme Court has affirmed multiple exceptions to this implied “right of privacy” (see, e.g., the Sentinel’s June 7 editorial, “DNA ruling weakens Fourth Amendment”), there is no “absolute rule” barring warrantless searches and/or seizures.  Thus, contrary to Justice Scalia’s dissent in the DNA case, the Fourth Amendment is by no means “categorical and without exception”.

On the other hand, “wiretapping” – where law enforcement (or the NSA) intercepts the communications of identified persons who have a” legitimate expectation of privacy” – always requires a warrant.

But, one NSA program at issue captures only the phone numbers at both ends of all calls (by subpoenaing “business records” routinely maintained by telephone companies) – not the content of the conversation or the identity of the participants.  Moreover, there is no “legitimate expectation of privacy” with either the internet or cell-phones.

The computer programming challenge is to design a system in which any “unwarranted” attempts to access “personally identifiable information” sounds an alarm, but continues to fulfill the security purposes of the Patriot Act.

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