President Obama's Flawed Defense of Surveillance: 4 Responses

This week, details about two vast government surveillance programs were leaked. One program, initially reported by Glenn Greenwald in The Guardian, involves the NSA demanding data about all phone calls from Verizon. The other program – PRISM -- was revealed by the Washington Post and involves the NSA and FBI "tapping directly into the central servers of nine leading U.S. Internet companies" and gathering extensive data about people.

President Obama vigorously defended these programs. I find his arguments unpersuasive; they resemble many of the arguments by the Bush Administration which prompted me to write my fairly recent book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY. In that book, I explain how many arguments about privacy and national security are flawed and how these arguments often skew the debate to the security side. The same arguments are being made again, this time by President Obama, and I want to provide some responses:

1. President Obama: “You can't have 100 percent security and also have 100 percent privacy and zero inconvenience. We're going to have to make some choices as a government.”

This is certainly true, but it makes a straw man out of the arguments of those concerned about the programs. Nobody really argues for this. Of course there are tradeoffs, but the debate is often cast as an either-or. The problems with the programs is not about having less than 100 percent privacy, but about whether these programs are subjected to the appropriate oversight, accountability, and transparency.

2. President Obama: “If people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure we're abiding by the Constitution, then we're going to have some problems here.”

Although Congress and the Judiciary were involved, this doesn’t automatically mean that there is adequate oversight. Congress hasn't frequently engaged in deep oversight of government surveillance. In the 1970s, Congress after years of being idle, finally conducted a sweeping investigation into government surveillance, and it released a report called the Church Committee Report that chronicled some extreme abuses in government surveillance, including unjustified FBI surveillance of Martin Luther King and an attempt by the FBI to blackmail him. Congress hasn’t undertaken a similar project since. To engage in adequate oversight, Congress should conduct a Church Committee style investigation at least every decade, if not more frequently.

Judicial oversight of these surveillance programs is often minimal and done in secret. There is no way for the public to evaluate the programs if everything is clandestine.

Finally, we shouldn’t trust the government. It should be the other way around – the government should trust us. In our democracy, the government serves at the will of the people, and the government should always have to justify what it does. The people are the ultimate boss, and we can’t evaluate what the government is doing without transparency.

Of course, sometimes secrecy is needed for a period of time, but it should be most sparingly used. As I describe in my book, countless government claims for secrecy in the past were unnecessary and often used to cover up mistakes or abuses.

3. President Obama: “[The government is] looking at phone numbers and durations of calls; they're not looking at people.”

Under the law, phone numbers and call durations are given much less protection as the content of calls. But this is a severe shortcoming of the law. Phone numbers can reveal quite a bit about our private activities, sometimes even more than content information. From phone numbers, the government can learn the identities of a person’s friends, groups, associations, lawyers, and doctors.

4. President Obama: "If every step that we're taking to try to prevent a terrorist act is on the front page of the newspapers or on television, then presumably the people who are trying to do us harm are going to be able to get around our preventive measures. That's why these things are classified.”

The argument that any transparency will help the terrorists has been made time and again. President Bush made it when details about an NSA Surveillance Program were leaked during his administration.

It is far from clear that terrorists will be able to “get around” surveillance if some of the details about the surveillance program are known. We know when and how the government can engage in wiretapping and other forms of surveillance – indeed, the rules are written into the law. Revealing the basic parameters and methods of oversight of various forms of government surveillance might not render the surveillance ineffective. The government often makes these bald assertions and the Legislative and Judicial Branches rarely challenge such assertions.

And why can't at least some of the basic details of the nature of the program be revealed so that the public understands how pervasively the government is engaging in surveillance?

What, exactly, will the terrorists learn by the existence of such programs? If the surveillance is legal, then the terrorists could already probably figure out that the government might be engaging in it. If the surveillance is illegal, then that might surprise the terrorists -- but then the surveillance violates the law.

At a minimum, assertions that surveillance programs must be kept secret ought to be challenged. And even more, the public needs to know about what the government is doing. Without such transparency, there is no way for the public to evaluate the government.

Democracy doesn't work on blind trust.

Daniel J. Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School, the founder of TeachPrivacy, a privacy/data security training company, and a Senior Policy Advisor at Hogan Lovells. The opinions expressed are those of the author only and not of any organization with which the author is affiliated.