After much consideration, I think I’m fine with the U.S. government collecting my phone records (subject to certain conditions, as spelled out below).
I’m not certain about this yet. If you make some great points about why I shouldn’t be fine with this, I might reconsider.
But, for now, I’m ready to tell the National Security Agency to carry on.
Because now that I’ve heard some examples about how the NSA might use my phone records (and yours) to prevent another terrorist attack or national security threat–i.e., for good–I’m willing to sacrifice a bit of privacy to help them do that.
I described one example of this here. This example is a scenario in which the NSA gets a tip that someone in America is planning a terrorist attack and is getting calls about it from a mastermind in Yemen. These calls from and to Yemen are going to throwaway phones, with a different phone used each time. And they’re happening just before the planned attack, so there’s no time to go through a standard call-record sub-poena process.
After getting the approval of the Foreign Intelligence Surveillance Act court, the NSA searches its massive database for calls made between the U.S. and Yemen. And it discovers that there were two calls made from the same area to a number that they’re tracking in Yemen. Using this and other information, the NSA figures out who is making the calls. And, if other evidence warrants, they arrest this person before the attack.
Having lived through 9/11, the Boston massacre, the Lockerbie bombing, and other terrorist attacks that hit close to home, I’d be happy to have the NSA use my phone records that way if that might help prevent more such attacks. (Nothing will prevent ALL attacks–I’m not delusional about that).
As long as the NSA doesn’t use my phone records in other ways, or mistakenly conclude from my phone records that I am a terrorist, I’m OK with this.
And if the NSA does happen to conclude that I am a terrorist, I would hope that the rest of the U.S. legal system would kick in and allow me to defend myself against that conclusion.
Yes, this is where it gets sticky. And this is where I think we need some changes.
The secrecy of the FISA court, as well as the fuzzy laws and ethics around what the government can do to suspected terrorists, might allow the government to “indefinitely detain” me or drone me or otherwise ruin my life because of their mistake.
And that would certainly be a bummer.
It’s worth noting, though, that the government occasionally also comes to mistaken conclusions about other people it suspects of crimes, and that, sometimes, even with the full checks-and-balances of the regular U.S. legal system, these mistakes lead to innocent people getting locked up or killed.
And it’s worth noting that standard domestic surveillance and investigations can also be conducted in secret, just like FISA investigations. Once the FBI gets a warrant, they can tap your phone and my phone without telling us. They can secretly gather evidence to present to a grand jury in secret and use the evidence to persuade the grand jury that we should be indicted–all without our knowing that we are even under investigation. Only later, if we are indicted, will we learn that we were being surveilled. And if the FBI eventually decides not to indict us, we might never know.
In short, there’s plenty of secrecy in the full-blown U.S. legal system, too. And it’s certainly not perfect in terms of always prosecuting only the guilty and protecting the innocent.
But the checks and balances in the U.S. legal system do allow you to defend yourself in court once you have been accused. And they also, arguably, create a higher hurdle for the government to demonstrate “probable cause,” in part because the judge who issues a warrant will know that his or her decision will be scrutinized. Grand juries do, occasionally, refuse to issue indictments. And judges do, occasionally, toss bad cases out of court.
And all of those things do provide more protection for individual citizens, who are otherwise usually woefully outgunned by the power and resources of the government.
So adding more oversight and transparency to the process by which the NSA gathers data, what data it gathers, and how it uses this data, would seem to be wise. And so would adding more ability for suspected terrorists to legally defend themselves.
That’s my current thinking.
I’m OK with the NSA collecting my phone records, provided they can’t use them for any purpose other than the one described above: Data mining to look for specific communication patterns that suggest a possible national threat.
I would also like to see FISA court decisions be subjected to the same checks and balances that govern the rest of the U.S. legal system.
And I think even suspected terrorists should be presumed innocent until they are proven guilty.
If these additional checks and balances on the NSA and FISA slightly reduce the country’s ability to protect itself against terrorist attacks, I can live with that. These checks and balances reduce the government’s ability to put ordinary criminals in jail, but as a society, we have decided that this tradeoff is worthwhile. And I think it is worthwhile. Avoiding prosecuting some innocent people for crimes they didn’t commit is worth allowing some actual criminals to go free.
So, go ahead and take my phone records, NSA. Please use them responsibly and wisely, as described above. And please keep protecting the country as well as you have since 9/11.
And Congress, please get cracking on providing more oversight and transparency around the FISA court system, as well as basic legal rights for the accused. Checks and balances are good.
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