The challenges of the 21st century have dealt increasingly with groups that are able to take advantage of the decentralized world order and create chaos with the intent of accomplishing group interest as opposed to national interest. This is the reality of terrorism and conflict in the modern era. In order for governments to deal with these complex challenges, a balance must be struck between security and digital privacy. Through our surveillance programs, governments should only monitor citizens to the extent that the information gathered is truly relevant to terrorist investigations. The necessary checks and balances must be put in place to ensure that government institutions do not relapse into a system that undermines the liberty that the social contract guarantees. Finally, we need to reevaluate the methods of domestic surveillance in our fight against terrorism, as it is ineffective in the status quo at keeping us safe.
The balance between security and digital privacy is necessary to ensure the maximization of the key values within the social contract. Security and liberty were shown to remain in balance by John Locke in his second treatise on government, noting that “he will have to part with as much of his natural freedom to provide for himself as is required for the welfare, prosperity, and safety of the society.” Thus the philosophical construct that was envisioned was a balance of power between maximizing the common good along with the necessary checks and balances in place to prevent the unjust violation of liberty. This is an important theory in US legal practice, and the formal term for it is called Equilibrium Adjustment. Orin Kerr of the Harvard Law Review explained in 2011 that in 4th amendment cases when technology proliferates and expands police powers, judges normally try to expand protections to reflect the balance that was set before proliferation.
The issue with equilibrium adjustment is judges often have incomplete information on the scope of the technology. When programs are set up, often times the checks that are meant to serve judicial functions are weak. The National Security Agency demonstrates this phenomenon in three ways. First, there is a clear violation of the principles set by the Supreme Court in Katz vs United States and United States vs District Court. David Sirota of the International Business Times elaborated in 2013 that the FISC (Foreign Intelligence Surveillance Court) allowed the NSA to have an ongoing warrant to obtain digital communications, which is a violation because prior judicial consent is required to obtain digital communications under the 4th amendment. Second, the FISC lacks the hallmarks of traditional judicial oversight. In a D.C. District Court ruling, Judge Richard Leon observed that judges operate best in an adversarial setting, and the current FISC only hears the governments take on the law and the constitution. This is evidenced by the fact that the FISC only denied .03% of all requests for access (according to the Stanford Law Review in 2014).
Third is that the NSA relies on flawed interpretations of the Patriot Act. In fact, the Patriot Act’s own author has expressly said that the NSA’s interpretation of section 214 and 617 of the act is very abusive, as it justifies the potential seizure of every American communication. It does this through the three-hop system, which the Guardian Newspaper notes as evaluating the seizure of communication based on the people that are affiliated with the suspect and those affiliated with the affiliates. That is why CNN reported in 2015 that a recent court ruling found that the NSA’s interpretation of the Patriot Act was found to be illegal. There are two ways we can reform the system, bearing in mind the current state of surveillance. We need to incorporate greater congressional oversight, as they are, politically speaking, mandated by the American people to ensure efficient oversight. Second, we need to commit to structural reform of the FISA Court to allow for a more adversarial process along with a codifying of strict rules on the NSA’s boundaries in surveillance. This is needed to assure the American people that the NSA will not go beyond statutory boundaries, as the NSA violated its own rules 2776 times.
These proposals of reform are necessary when considering the financial consequences of the surveillance and the relative ineffectiveness of the NSA in stopping terrorism. When considering the digital effects of surveillance, the NSA has carried out 231 cyber operations while poking holes into digital networks. This allows for cyber terrorists to carry out attacks against US services and undermine trust in US firms. By the end of 2016, the Forrester Foundation reported that US technology sectors stand to lose 180 billion dollars in lost profits. The loss is because of NSA spying on domestic and international networks that have not yielded any benefits to terrorism reduction. This was echoed by an empirical study conducted by Peter Bergen of the New America Foundation who found that NSA spying has had no discernable effect on terrorism, which has been stopped primarily by using traditional methods of law enforcement. It might be said that the meta data program isn’t restrictive because no content is recorded and therefore the decline in the level of trust in our system is misguided. However, Edward Felten of Princeton University found that meta data programs can be more restrictive than investigating content because meta data records the identity of callers. With this in mind, in order for our laws to maintain equilibrium adjustment, we have to reevaluate domestic surveillance and reform it with better institutions of restraint to ensure the balance between privacy and security. As Dani Rodrick of Princeton University argued recently, institutions of restraint are what preserve constitutional liberalism.
Benjamin Franklin once said that “those who surrender freedom for security will not have, nor do they deserve, either one.” Our current NSA security strategy has failed to follow the principle of equilibrium adjustment and the advice of Benjamin Franklin. This has been demonstrated by the unlawful domestic surveillance by the NSA that has weakened our economy. In addition, the domestic surveillance has been ineffective at stopping terrorism, which has primarily been stopped using traditional law enforcement methods. The dangers of terrorism in the modern era must be noted. However, when our institutions decay for the purpose of pursuing counterterrorism we begin a long process of emulating the enemies we seek to destroy. Only with the balance between security and digital privacy can we live up to principles set by John Locke in the great social contract of our nation.
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