As it turns out, the answer may be Yes. What isn’t getting the attention it deserves is that civil libertarians are not calling for a complete end to the surveillance the government says it needs to continue exercising. They are simply calling for a narrowing of it — one that would better balance the need to protect the American people with the need to guard Americans’ right to privacy.
Here, with the help of Michelle Richardson, legislative counsel for the ACLU, are steps that could be taken to mitigate current government overreach:
Narrow the scope of the relevant statute. This isn’t likely to happen, because it would require an act of Congress, and many members of Congress have staunchly defended the current NSA programs. But narrowing the statute is probably the only way current NSA overreach can be reined in, Richardson tells me. What would that entail?
The gathering of phone records is the result of the government’s interpretation of section 215 of the Patriot Act, which expanded the government’s ability to collect records while lowering the standard required to allow it, in ways civil libertarians believe violates the 4th Amendment. This statute could be narrowed by moving to what Richardson calls a “suspicion-based” standard. Under this standard, the government could not do a massive open-ended dragnet compilation of phone records. Instead, it could get a court’s permission to gather the phone records, i.e., the meta-data, of someone reasonably suspected of being a terrorist or spy — or someone who has been contacted by one of those people, Richardson argues. Info could be gathered on a group of people suspected of those activities, or even on a suspected entity (such as a building out of which terrorists or spies are suspected of operating).
Under this standard, the government could continue collecting the phone records even of Americans not suspected of anything, since such a search would result in the gathering of records on everyone the suspects were contacted by, including innocents. But that search could only be initiated by a reasonable suspicion about a particular person, group, or entity. This would balance national security with a more reasonable — but not perfect — defense of Americans’ privacy rights.
As for true emergency situations, Richardson says, the government’s ability to get emergency orders from the FISA court could be maintained, even amid a statutory fix.
Such a statutory fix could also apply to the so-called PRISM program, which allows for collection of foreign intelligence information from internet service providers. By limiting such collection only to those abroad suspected of terrorism or spying, you would not eliminate the collection of data on Americans, since their information might be collected if they had been contacted by those suspects. But you’d again narrow the searches only to “suspicion based” information collection, Richardson says: “By returning to a suspicion based standard, you’d prevent the mass collection of information on innocent people not suspected of any ties to terrorism, but you wouldn’t eliminate surveillance.”
Bring more transparency to the current programs. Ron Fournier writes: “Tell us what our government is doing, and why.” Is this possible? To some degree, yes. Barring the above statutory change, the government could bring more transparency right now to the programs that are currently operating. For instance, Richardson notes, we know phone records are currently being gathered in a data-base. What about, say, emails and financial records? How broad is the program, anyway?
The Director of National Intelligence has clarified that the government does not have the power to listen in on calls or monitor content of communications. However, Richardson notes, the government could be more forthcoming about the guidelines that determine whether it is able to look at meta-data of Americans not suspected of anything. What is done with all of this information, and what dictates how or whether it is accessed?
Key questions remain about the scope and inner workings of this program. The administration — and members of Congress — have said more disclosure could imperil their effectiveness by tipping off would-be terrorists. But as Richardson notes, they are likely proceeding from the assumption that they are being subjected to extensive surveillance already, so that excuse rings hollow. “The 9/11 plotters communicated in code,” Richard says.
Also: The FISA court decisions granting government surveillance authority should be disclosed, with appropriate redactions. “The bottom line is there shouldn’t be secret law,” Richardson concludes.
What it all means: Obama used to say that the need to decide between national security and civil liberties was a “false choice.” More recently he has taken to suggesting that he views his role as commander in chief as one that requires him to prioritize security, and to compromise civil liberties, if necessary to keep the American people safe.
But from the point of view of civil libertarians, Obama was right the first time: There are ways to maintain the government’s power to conduct surveillance designed to keep us safe while genuinely safeguarding liberty and privacy rights.
To be sure, national security experts might quarrel with the civil libertarian argument that these principles can be safeguarded without compromising security. And far too little is known about how these programs work to be sure about how — or whether — a proper balance can be achieved. But the basic fact that needs to be understood is that civil libertarians are not calling for an end to surveillance. They just want us to at least make a serious effort to get that balance right. Which Obama himself has articulated as a goal, at least in theory.