Edward Snowden may not have changed the world, but he did help confirm some things we already suspected about U.S. intelligence gathering. The National Security Administration (NSA) has been conducting sophisticated electronic surveillance for quite some time, under a variety of programs authorized after the Sept. 11, 2001 terrorist attacks in New York, Pennsylvania, and Washington D.C. Prior to Edward Snowden’s initial release of classified information in May and June of 2013, the existence of government driven metadata surveillance programs was not really a secret at all. Indeed, we’ve known about the existence of government driven metadata surveillance and international intelligence cooperation and data-sharing for years.
Now, however, it appears the world is watching – and perhaps some change is coming as a result. In December, President Obama’s Review Group on Intelligence and Communications Technologies suggested a number of revisions to the NSA’s programs that would limit its scope to some extent. Additionally, a recent report by the Privacy and Civil Liberties Oversight Board calls for the cessation of the NSA’s Section 215 bulk phone records surveillance program (which the PCLOB stated was unconstitutional and not authorized by the letter or spirit of the USA PATRIOT Act). The PCLOB report came just a week after President Obama called for some modest reforms.
Much of the NSA’s surveillance appears to be limited to the metadata – information about information – associated with telephone calls, emails, and other forms of electronic communications. Officials are claiming that metadata is less revealing than the actual contents of our communications. However, as our landline-initiated telephone calls of the past have been largely supplanted by cell phone, wireless, and Internet-based communication, the amount of metadata – and its ability to ascribe revealing attributes about us – has grown tremendously.
Our current communications metadata often includes highly accurate geo-location information sourced from cell towers, GPS chips embedded in our devices, and the presence of available WiFi connections nearby. This information is not just useful to determine where we are, but may also indicate with whom we are traveling based on geo-location metadata of those nearby. As researchers have shown, small amounts of otherwise anonymous geo-location data from cellular networks can be used to accurately identify individuals.
In this modern, high-tech, world, how should we define reasonable expectations of privacy in relation to metadata? In a world where information knows no borders, domestic legal protections potentially disappear when foreign governments also collect and share similar data (which they are). Much has been said about the need for human rights-based protections to regulate transnational intelligence networks and cross-border collaboration, but these suggestions also pose tremendously difficult questions.
At least three primary questions need to be addressed. First, what types of communications information should we allow governments to acquire without restrictions? Second, what procedural and legal hurdles should be put in place to protect more “personal” or “private” information? Third, what transparency and oversight mechanisms should be put in place to ensure that governments are abiding by the policies put in place? We should not necessarily be dismantling our signals and communications intelligence infrastructures, but we should be ensuring that they operate within legal and democratically sanctioned ways that do not impermissibly infringe on our political freedoms.
The text of the International Covenant on Civil and Political Rights (ICCPR), a widely ratified international human rights treaty, addresses these questions to some extent, and includes provisions that relate to both the neorepublican notion of freedom as the lack of susceptibility to arbitrary domination and the more liberal idea of freedom as noninterference. Article 17 of the ICCPR states that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Article 18 guarantees the freedoms of thought, conscience, and religion, and Article 19 guarantees the “right to hold opinions without interference” and the “right to freedom of expression.” The European Convention on Human Rights, an important regional – rather than truly international – treaty, also provides similar protections, as do the constitutions and charters of many other democratic countries.
In cases challenging secret surveillance in Europe, the European Court of Human Rights (ECtHR) has stated, in terms that resonate with both republican and liberal notions of freedom, that:
According to Neil Richards, an American law professor,
Secretive government surveillance may actually interfere with our rights to intellectual or informational privacy – the rights to access, acquire, and use information, and to control information about ourselves. It might also infringe on our rights to free expression and chill speech, including both speech itself and searching for information as a predicate to speaking. If we cannot access knowledge about whether we have, in fact, been interfered with, then this clearly has serious implications for our freedoms, regardless of whether we have actually been sucked into the NSA data vacuum.
On the other hand, increased transparency may also have some negative impact on the efficiency and effectiveness of counter-terrorism efforts. These interests are not insubstantial. As a result, transparency measures should be tailored to respect legitimate national security interests. Ultimately, however, some additional transparency – and some reduction in potential domination – might be justified precisely because it increases the political freedoms of the people. We might claim greater democratic interest in information about secret legal interpretations or methods used to conduct surveillance than about the substantive information actually collected – but we might draw lines in different places as well.
Actual interference needs to be adequately justified, and the potential for arbitrary domination by governments must be severely limited. How best to address these concerns is a pressing question. Regardless of where we ultimately end up, answering and debating these questions will have important ramifications for how we think about our political freedom – and how much freedom we ought to let slip away for the sake of security.
(Editor’s note: A version of this post was originally published on the Digital Media Law Project blog.)