I find myself feeling ambivalent in the current debate about the Patriot Act and the data-collection activities of our national intelligence agencies. What is the right balance between privacy and surveillance, between reasonable individual agency and reasonable security?
Those are difficult questions, and I doubt that the answers lie at either extreme. Some people fear the government inordinately and believe that its data collection is either a deliberate power-grab or part of a long, slow march to erode our freedoms. Others fully trust the government not to abuse its power or they accept almost all intelligence measures deemed necessary by the state to ensure security. But probably, healthy, prudent intelligence protocols should fall somewhere between those two postures.
The original Patriot Act was passed on October 26, 2001, in the emotionally charged aftermath of 9/11. Probably, it could have used more refinement and more oversight provisions. It has been amended by legislation and the courts a number of times. Still, its 342 pages contain gray areas, loopholes and parts subject to interpretation (inevitably, like most complex laws).
The act enlarged the powers of the federal government to search, seize, detain and wiretap. It lowered the standards by which search warrants or wiretap orders are obtained, it narrowed the scope of what the intelligence agencies must disclose, and it broadened definitions of domestic terrorism. The act also made it easier for authorities to detain and indefinitely hold suspects, deny access to legal counsel, and harass or intimidate immigrants, citizens and businesses.
Prior to the Patriot Act, the Foreign Intelligence Surveillance Act (FISA) of 1978 was the primary arbiter of the legality of various intelligence activities. However, FISA was not enacted in response to threats from abroad, but in response to President Nixon’s abuse of federal intelligence resources to monitor and investigate American individuals and groups that were considered — by Nixon or the intelligence agencies — dangerous, unpatriotic or politically radical. Those groups included Vietnam War protesters, anti-nuke activists, environmental advocates, “longhairs” and mere political opponents.
FISA established rules for wiretapping, search warrants, surveillance and investigation of intelligence targets. It permitted authorized, covert surveillance, while maintaining both secrecy and court and Congressional oversight. Notably, it set much stricter rules for spying on American citizens than those it set for noncitizens and foreigners.
It is important to note that FISA has worked well. The FISA court has issued literally tens of thousands of search and wiretap warrants, with very few complaints or challenges. It is also important to note that FISA, by its very founding, reaffirmed the principle that Americans do not expect to be investigated for exercising our wide-ranging rights.
Which brings us back to what we have learned about the government’s data collection efforts since 2001. Essentially, all types of surveillance — physical, video, phone, online — have increased steadily, to the point today where we can safely assume that there are no private communications if any third party or filtering medium is involved.
That sounds terrible — and Orwellian — but it may pose no threat to our personal liberty. My reading of what has happened is this: The nature of the plethora of communication technologies has evolved so fast and offers so many avenues for bad people to plot bad things, that the only way to detect them is to continuously monitor all communications everywhere — globally.
Furthermore, other circumstances have changed. The nature of bad people, and the nature of the tools at their disposal, have become many magnitudes more dangerous than, say, 30 years ago. Terrorist fanaticism has become more robust, more widespread, and more mobile and far-reaching than ever before. And the variety of weapons has become much larger, more available, more lethal and potentially staggeringly devastating (think electrical grid shutdown) than ever before in history.
Lastly, the world itself has become small, overcrowded, interconnected and strained, and the design and dependencies of modern society contain all sorts of extreme vulnerabilities. Ironically — as we lament the ubiquitous surveillance that computers make possible — it is the very conversion of everything to computer control and online operation that is the source of one of the biggest vulnerabilities we have.
All sorts of threats today, hidden within terabytes of data, outnumber and move faster than search warrants or court-ordered surveillance. Consequently, our government is using continuously running complex algorithms, pattern recognition, statistics and mathematical strategies to scan, analyze, sort and categorize many (maybe all) of our phone calls, emails, blogs, Internet searches and social media connections to hunt for threats. They save much of the data in the hope of connecting dots — either before or after events.
The government is doing this for the right reasons, and that makes a difference. I don’t believe that any American government will use that data to abuse Americans — at least for long. Not enough citizens or politicians would stand for that. Although mistakes have occurred where individuals have been wrongly accused, they have been rare and got corrected.
So, we are stuck with difficult simultaneous realities — a dangerous world, a need for formidable surveillance and, therefore, the need to be watchful of both.
Brian T. Watson is a Salem News columnist. Contact him at email@example.com.