[NYTr] John Dean: Why Surveillance Threatens Us All, Even If You Have Nothing to Hide

[All the News That Doesn't Fit]

FindLaw - Oct 19, 2007
http://writ.lp.findlaw.com/dean/20071019.html

The Case Against Expanding Foreign Intelligence Surveillance Act Powers 

Why, Even If You Have Nothing To Hide, 
Government Surveillance Threatens Your Freedom 

By JOHN W. DEAN 

"I've got nothing to hide, so electronic surveillance doesn't bother
me. To the contrary, I'm delighted that the Bush Administration is
monitoring calls and electronic traffic on a massive scale, because
catching terrorists is far more important that worrying about the
government's listening to my phone calls, or reading my emails." So the
argument goes. It is a powerful one that has seduced too many people.

Millions of Americans buy this logic, and in accepting it, believe they
are doing the right thing for themselves, their family, and their
friends, neighbors, community and country. They are sadly wrong. If you
accept this argument, you have been badly fooled.

This contention is being bantered about once again, so there is no
better time than the present to set thinking people straight. Bush and
Cheney want to make permanent unchecked Executive powers to
electronically eavesdrop on anyone whom any President feels to be of
interest. In August, before the summer recess, Congress enacted the
Protect America Act, which provided only temporary approval for the
expanding Executive powers under the Foreign Intelligence Surveillance
Act (FISA). These temporary powers expire in February 2008, so Congress
is once again addressing the subject.

The FISA Amendments: The Administration Is Seeking Immunity for
Miscreants

Because of the way electronic traffic is directed from foreign
countries through the United States, the FISA Court had previously
rejected requests to intercept certain foreign-person-
to-foreign-person communications in the United States. It was a
technical problem, arising from the fact that FISA was written before
modern data routing had been designed, and FISA thus needed fixing. On
this, everyone agreed.

However, when the Bush Administration asked for the necessary fix to
FISA, it also requested much more, including immunity under the
existing laws for all the telecommunications companies that have been
assisting the government in its illegal warrantless surveillance.
Significantly, this practice - justified by reference to the "war on
terror" - apparently started well before 9/11 under the Bush
Administration.

Ironically, in requesting this immunity, the Bush White House has
refused to disclose exactly what type of activities Congress would be
retroactively immunizing. Preliminary congressional inquiry has
revealed that a massive amount of electronic surveillance of Americans
has gone on under the Bush/Cheney Administration. For example, one of
the telecom giants, Verizon, reported that between January 2005 and
September 2007 they provided information on 94,000 occasions. These
numbers suggest that Verizon was operating as merely another (and a
secret) extension of the federal intelligence establishment.

Many of the companies appear to be violating a number of federal
criminal statutes - such as 18 U.S.C. 2511, which requires a warrant
for such surveillance and 18 U.S.C. 2702, which prohibits any "entity
providing an electronic communication service to the public" from
knowingly divulging "to any person or entity the contents of a
communication" without a court order.

Currently, the telecoms are not likely to be particularly worried about
being prosecuted by the very same government that instructed them to
violate the law, and is leading the way in doing so itself. Column
continues below ↓

But what about under the next Administration? The five-year statute of
limitations will make them potentially criminally liable after Bush is
gone - at least, unless the Bush Administration gains for them
retroactive and future immunity. In a new Administration, the telecoms
may be viewed not as cooperative patriots, but rather as criminal
co-conspirators.

Civil Liability Appears To Be Driving the Immunity Request

Meanwhile, civil liability for these companies is also a realistic
prospect. For example, in a San Francisco federal court, AT&T customers
are seeking to protect their privacy with actions under laws like 18
U.S.C. 2520, which provides a civil remedy and hefty damages -- ranging
up to $10,000 per day per violation. Since it is possible that, over
five-plus years, there have been tens upon tens of thousands of such
violations, the, if liable telecoms could be looking at hundreds upon
hundreds of millions of dollars of damages.

The Bush Administration clearly wants to help its partners in crime; it
also wants to avoid accountability for what it has done and is still
doing. If the civil litigation proceeds - and one judge already ruled
that the "state secrets" privilege does not prevent the plaintiffs from
going forward - the Bush Administration faces the risk of a federal
court's forcing it to disclose its unsavory surveillance activities.

Privacy advocates are horrified at the prospect of Congress's
potentially protecting this activity through immunity legislation. Yet,
in sharp contrast, most people could care less. Indeed few people seem
to care about their loss of privacy, notwithstanding the fact that,
like an invisible pollutant to our air or water, it is increasingly
eroding our freedom. Unfortunately, it seems that the invasion of our
privacy, like the destruction of our atmosphere, may be tolerated until
it is too late to fix it.

One of the leading causes of both problems is ignorance. Privacy is a
highly complex issue, so people easily accept the claims of those who
assert that, if you are not doing anything illegal, you have nothing to
be concerned about government surveillance, and if you are, you have no
right to privacy to break the law.

Understanding the Misunderstanding about Privacy

For several years I have been reading the work of George Washington
University Law School Professor Daniel J. Solove, who writes
extensively about privacy in the context of contemporary digital
technology. The current apathy about government surveillance brought to
mind his essay "'I've Got Nothing To Hide' And Other Misunderstandings
of Privacy."

Professor Solove's deconstruction of the "I've got nothing to hide"
position, and related justifications for government surveillance, is
the best brief analysis of this issue I have found. These arguments are
not easy to zap because, once they are on the table, they can set the
terms of the argument. As Solove explains, "the problem with the
nothing to hide argument is with its underlying assumption that privacy
is about hiding bad things." He warns, "Agreeing with this assumption
concedes far too much ground and leads to an unproductive discussion of
information people would likely want or not want to hide." Solove's
bottom line is that this argument "myopically views privacy as a form
of concealment or secrecy."

In his work, Solove addresses the reality that privacy problems differ:
Not all are equal; some are more harmful than others. Most importantly,
he writes, "to understand privacy, we must conceptualize it and its
value more pluralistically." Through several years of work, Solove has
developed a more nuanced concept of privacy that rebuts the idea that
there is a "one-size-fits-all conception of privacy."

The concept of "privacy" encompasses many ideas relating to the proper
and improper use and abuse of information about people within society.
Privacy protects information not only because it would cause others to
think less of the person at issue, but also simply to give us all
breathing room: "Society involves a great deal of friction," Solove
writes, "and we are constantly clashing with each other. Part of what
makes a society a good place in which to live is the extent to which it
allows people freedom from the intrusiveness of others. A society
without privacy protection would be suffocation, and it might not be a
place in which most would want to live."

Professor Solove's work - much of which he makes available online -
helps clarify thinking about privacy in its fuller context, and helps
explain what is wrong with reductive dismissals of privacy using the
mantra, "I've got nothing to hide." Before rushing to give the Bush
Administration more ways to invade our privacy, not to mention
absolving those who have confederated with him to engage in the most
massive invasion of America privacy ever, members of Congress should
look at Solove's work. Too many of them have no idea what privacy is
all about, and grossly underestimate the value of this complex and
essential concept.

[John W. Dean, a FindLaw columnist, is a former counsel to the
president. ]