Politicians, press dodge crucial debate on surveillance

Commentary: The Snowden leaks have exposed the need for a national discussion on privacy, but it isn't happening

The National Security Agency's Threat Operations Center at Fort Meade, Md.
Paul J. Richards/AFP/Getty Images

Throughout all the bombshell revelations this summer about U.S. government surveillance, President Barack Obama and top intelligence officials have insisted they welcome a public debate on the balance between security and privacy.

But in reality, they could not be trying much harder to stifle it.

Thanks to the bountiful leaks from Edward Snowden to The Guardian and other newspapers, the public is finally getting an accurate sense of the vast U.S. electronic surveillance regime that collects, connects and retains massive amounts of information about all of us — although government officials are asking us to believe that almost none of it ever gets looked at by anyone.

Far from being forthcoming, however, when administration representatives have made themselves available for questions, their answers have been defensive — often vague or overly narrow, misleading or plainly untruthful. In oversight hearings, they have attacked the leaks and the leaker, made unsubstantiated complaints about press coverage, misrepresented the concerns of privacy advocates and employed scare tactics.

Sen. Ron Wyden, D-Ore., has been one of the few members of Congress to complain about it, raising one subterfuge in particular: "After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones," he said in a statement last week, "once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security."

The president has charged two ostensibly independent commissions to report back to him on some possible reforms, but he has indicated he thinks the most that might be needed is some tweaks. "People may want to jigger slightly sort of the balance between the information that we can get versus the incremental encroachments on privacy that if haven't already taken place, might take place in a future administration, or as technologies develop further," Obama told reporters in August.

What the nation needs, however, is not reassurance from politicians about a few secret changes to covert programs. We need an accessible public discussion of what privacy means in this new era.

Americans have historically had a reasonable expectation that the government was not watching their every move. But the kind of ubiquitous surveillance that once required a massive application of manpower is now cheap, and will soon be effortless.

Thanks to the Snowden revelations, we now know that the government already sweeps up vast amounts of information about Americans, including "metadata" showing whom they talk to, and email, public and commercial information including bank codes, insurance information, Facebook profiles, transportation manifests and GPS-location data.

When you add all that up — even if the government stops short of actually listening in on your phone calls and reading your emails — there is basically no privacy left.

So the central questions posed by the Snowden revelations are these: Is there still a right to privacy in the modern age? And if so, how far does it extend?

The nature of privacy is too important to be determined by a small group of experts behind closed doors.

And because congressional leaders appear disinclined to call attention to their own historical submissiveness to the executive branch in this area — even though they control the funding and oversight of the intelligence agencies — the following questions will need to be addressed in public by the media, through probing journalism, on-the-record interviews, public-records requests, and town halls and other public forums that encourage citizen involvement:

Do American citizens have a right to private electronic communication? Does anyone else, here or abroad? Does that right protect just the content of their communications, or the metadata about those communications as well? Or does the government's duty to protect Americans justify the collection, storage, analysis and monitoring of every electronic communication between persons?

Although most people travel openly in public and do not take precautions about being seen, they do not thereby consent to being tracked. Nor do they expect their phones to be used as tracking devices. So should there be limits to the government's use of location data gathered from cell phones, mobile apps and public video cameras?

What is permissible for other governments to do to Americans? Is the U.S. government protecting Americans from surveillance by foreign governments, or is it sharing our secrets with them? Does the U.S. intelligence community recognize any privacy rights at all for citizens of other countries?

What about attorney-client privilege? Doctor-patient confidentiality? Journalist-source secrecy? Should those be shielded from the scrutiny of U.S. intelligence, either at home or abroad? Should U.S. legislators and judges be subject to the same surveillance as everyone else?

Is the very act of collecting massive amounts of information about Americans and putting it into a giant database a violation of privacy? Or does it matter only when and if that information is accessed and used by officials?

Secure encryption protects Internet commerce, provides security and authenticates identity. Should Americans grant the government the power to undermine it? If so, under what circumstances?

And why should we trust what government officials say about surveillance programs? If nothing else, the Snowden leaks have made it painfully obvious that officials have misled the public for a very long time.

Despite such dishonesty, Americans are being asked to trust that the government will access its massive databases only for legitimate investigative purposes. We are being asked to trust the intelligence community to police itself.

How can the public be confident that any of the rules meant to protect its privacy are really being enforced? How can we be confident that the government can even keep track of what it is doing?

Finally, how much of the surveillance regime itself really needs to be secret? Al-Qaeda operatives are surely aware that the government is watching them in countless ways. What could more disclosure about the general nature of the programs tell them that they do not already surmise? How can Americans assert their rights against encroachment from such programs if they remain ignorant about them?

The Snowden revelations have been so numerous that they are still being processed, and more are to come. Predicting the public's reaction is difficult: More shocks could bring numbness and paralysis — or they could stimulate the public's desire for a coming-to-terms.

The public and the press have perhaps been cowed from demanding a more open and frank discussion of these issues in deference to national security concerns. But the Snowden revelations demand more of us.

The nature of privacy is too important to be determined by a small group of experts behind closed doors. This is the kind of debate that comes around only once in a generation, and is possibly even unique to this moment in history as our analog world transitions to a digital one.

The future of this debate depends on how the national press responds. It could allow the story to fade into just so much more background noise. Or the press could embrace its rightful role as the champion of the public interest, and make sure regular American citizens are a party to important decisions about what is private and what is not in the digital age.

Opinions expressed here do not necessarily reflect those of Al Jazeera America.

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