A government’s first job is to protect
its citizens. But that should be based on informed consent, not blind trust
CONSTANT vigilance: that is the task of the people who
protect society from enemies intent on using subterfuge and violence to get
their way. It is also the watchword of those who fear that the protectors will
pursue the collective interest at untold cost to individual rights. Edward
Snowden, a young security contractor, has come down on one side of that tussle
by leaking documents showing that the National Security Agency (NSA) spied on
millions of Americans’ phone records and on the internet activity of hundreds
of millions of foreigners.
The documents, published by the Guardian and the Washington
Post, include two big secrets (see article). One is a court order telling Verizon, a
telecoms company, to hand over “metadata”, such as the duration, direction and
location of subscribers’ calls. The other gives some clues about a programme
called PRISM, which collects e-mails, files and social-networking data from
firms such as Google, Apple and Facebook. Much of this eavesdropping has long
been surmised, and none of it is necessarily illegal. America gives wide powers
to its law-enforcement and spy agencies. They are overseen by Congress and
courts, which issue orders to internet firms.
Barack Obama has responded to the leaks by saying that he
“welcomes” a debate on the trade-off between privacy, security and convenience.
Despite the president’s words, however, the administration and much of Congress
seem unwilling to talk about the programmes they oversee; and the politicians
and executives who do want to speak out are gagged by secrecy laws. Opinion
polls show that Americans are divided about the merits of surveillance—which is
partly because they know so little about what is going on. But spying in a
democracy depends for its legitimacy on informed consent, not blind trust.
Guarding the guards
You might argue that the spies are doing only what is
necessary. Al-Qaeda’s assaults on September 11th 2001 demonstrated to
politicians everywhere that their first duty is to ensure their own citizens’
safety—a lesson reinforced recently by the attack on the Boston marathon in
April and last month’s gruesome murder of Lee Rigby, a British soldier, in
London. With Islamist bombers, there is a good case for using electronic
surveillance: they come from a population that is still hard for Western
security services to penetrate, and they make wide use of mobile phones and the
internet. The NSA’s boss, Keith Alexander, says the ploys revealed by Mr
Snowden have stopped dozens of plots. The burden on society of sweeping up
information about them has been modest compared with the wars launched against
Afghanistan and Iraq. And the public seems happy: if there were another attack
on America, Mr Snowden would soon be forgotten.
Yet because the spies choose what to reveal about their
work, nobody can judge if the cost and intrusion are proportionate to the
threat. One concern is the size, scope and cost of the security bureaucracy:
some 1.4m people have “top secret” clearances of the kind held by Mr Snowden.
Is that sensible? The WikiLeaks saga also exposed weaknesses in the system.
A second worry is the effect on America’s ties with other
countries. The administration’s immediate response to the PRISM revelation was
that Americans have nothing to fear: it touched only foreigners. That adds
insult to injury in countries that count themselves as close American allies:
the European Union, in particular, fastidiously protects its citizens’ data.
Fears abound that the spy agencies practise a cynical swap, in which each
respects the letter of the law protecting the rights of its own people—but lets
its allies do the snooping instead.
Lawyerly official denials of such machinations fail to
reassure because of the third worry: that governments acting outside public
scrutiny are not to be trusted. James Clapper, America’s director of national
intelligence, told Congress in March that the NSA does not gather data on
“millions of Americans”. He now says he answered in “the least untruthful
manner” possible. Trawls through big databases may produce interesting
clues—but also life-ruining false alarms, especially when the resulting
decisions are cloaked in secrecy. Those on “no-fly lists”, which ban an unknown
number of people from most air travel, are not told what they have done wrong
and cannot clear their names. In desperation, 13 American citizens, including
some who were exiled from their own country by the travel ban, are suing the
government.
Furthermore, governments tend to be opportunistic. After
September 11th Dick Cheney, then vice-president, and his staff exploited the
rules to gain important new powers that they then kept secret. Even Congress
did not know of this. Today’s spooks are supposedly more closely constrained.
Yet America’s system involves judges sitting in a secret court who issue secret
data-collection orders which bind the recipients to secrecy. A handful of
secretly briefed lawmakers oversee the process. The legal opinions that govern
the process are secret, too.
Attempts to cast light on this verge on the
farcical: the Electronic Frontier Foundation, a lobby group, is fighting a
legal battle to get the secret Foreign Intelligence Surveillance Court to
release a secret opinion issued in 2011, which (unusually) blocked a secret NSA
programme. Perhaps the ends justify the means—we do not know—but that was not
the case with extraordinary rendition, “black jails”, waterboarding and the
other ventures Mr Cheney’s mob led America into.
Trust but verify
Our point is not that America’s spies are doing the wrong
things, but that the level of public scrutiny is inadequate and so is the right
of redress. Without these, officials will be tempted to abuse their powers,
because the price of doing so is small. This is particularly true for those who
bug and ban.
Spooks do need secrecy, but not on everything, always and
everywhere. Officials will complain that disclosure would hinder their efforts
in what is already an unfair fight. Yet some operational efficiency is worth
sacrificing, because public scrutiny is a condition for popular backing. Even
allowing for the need to keep some things clandestine, Americans need a clearer
idea of what their spies are doing in their name. The Economist
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