Alan M. Dershowitz continues his five-part series with a discussion on surveillance, privacy, and the case of former National Security Agency contractor Edward Snowden.
The recent disclosure by Edward Snowden of the US government’s wide net of surveillance has stimulated an emotional debate about security, privacy, and secrecy. We have learned from Snowden that the National Security Agency engages in virtually unchecked monitoring of all sorts of communications that were thought to be private but that we now know are maintained in secret government databases.
Three fundamental issues are raised by these disclosures: Was it proper for the government to conduct such massive surveillance and to maintain such extensive files? Was it proper for the government to keep its surveillance program secret from the public? If not, did this governmental impropriety justify the unlawful disclosure of so much classified information by Snowden?
There are no simple or perfect answers to these questions. All governments, even those that respect the right to privacy, must engage in some surveillance. The nature and extent of permissible intrusion on privacy will always depend on the nature and extent of the threats posed and the value of the information sought in preventing these threats from materializing. A delicate balance must be always struck between security and privacy.
We don’t know precisely what sorts of information the NSA has gathered and from whom. (This lack of knowledge in itself is part of the problem.) But we know enough to be concerned that our phone calls, e-mails, and even oral conversations may be subject to governmental monitoring and collecting. The government denies that it is listening to or reading the content of private communications between ordinary citizens, claiming that the NSA collects only the “metadata,” specifically the identifying features of the persons who are communicating; the times, durations, and locations of such communications; and other “externalities.” The massiveness of such a collection process tells the government a great deal about the substance of terrorist plans. But it also tells the government a great deal about the substance of our private lives. That is why there is so much controversy about a program that gathers so much with so few checks and so little accountability.
The real question in a democracy is not whether a balance must be struck — of course it must — but who should get to strike that balance. Which brings up the secrecy issue. If the governmental programs of gathering information are kept secret from the public and from most of its elected officials, then the balance will be struck, if it is struck at all, by intelligence officials who have a far greater interest in security than in privacy.