Government surveillance a bad idea from the start

John Sununu

Tuesday, July 23, 2013 | 2 a.m.

More than three weeks since fleeing Hong Kong, and six weeks since leaking a trove of security-related documents, Edward Snowden remains holed up in the transit zone of Moscow’s Sheremetyevo Airport. The former U.S. government contractor’s exposure of sweeping intelligence gathering at home and abroad unleashed a frenzy of media coverage, with Snowden’s self-aggrandizement and mercurial personality winning the lion’s share of attention. Members of Congress have been quick to express their shock and dismay at his outrageous behavior. Doing so makes it easier to avoid the hard fact that they all knew — or should have known — about the lax oversight of these programs. I certainly did when I was in office.

The lack of supervision cuts both ways; even as a contractor at Snowden’s level can obtain and release vast amounts of classified information, government agencies’ appetite for still more data keeps growing. What little talk of reform may have broken through the din in Washington has yielded little substantive action. That’s not to say that nothing will ultimately change, but I wouldn’t bet on it. Republicans who readily supported the creation of these initiatives under President George W. Bush are unlikely to change course. Democrats who should know better are happy to now give their own president a pass.

Completely lost in this sea of ambivalence are the most important issues at stake: In their current form, what do these programs say about our society and our willingness to forgo what only a few years ago would be considered basic principles of personal privacy? Are we, in the momentous words of Franklin, sacrificing “essential liberty to purchase a little temporary security” and therefore deserving of neither? And once the sacrifice is made, can we ever go back?

You don’t have to condone Snowden’s leaks to believe that we are on a disturbing path.

Government power to demand vast troves of business records was at the heart of the filibuster I led to stop proceedings on the Patriot Act in 2005. We argued that the threshold for obtaining so-called “Section 215 subpoenas” -- which grant access to a broad variety of business records and other material without judicial approval -- was too low, that the gag order preventing business owners from talking to anyone about these subpoenas was too harsh, and that congressional oversight of the entire process was nonexistent.

We won additional protections for libraries, a revision of the gag order, and a better standard for roving wiretaps. But the potential for abuse of the Section 215 subpoena remained. That very power was used to obtain data on every call made with each of the country’s major telephone carriers during the past several years. It appears that our concerns were well placed.

In 2005, as now, the president and attorney general made two fundamental arguments in their opposition to greater limits on subpoenas or on the “warrantless wiretapping” at the heart of PRISM, the other National Security Agency program exposed by Snowden.

The first argument raised by the Bush administration then, and the Obama administration now, boils down to: “Don’t obsess about the need for oversight, because we won’t abuse the power we are given.” But whether we are talking about business records, international eavesdropping, or President Barack Obama’s policy of targeted killing, we demand checks and balances not because we don’t trust today’s leaders, but because a day may come when someone less noble holds the reins of power.

Second, proponents have consistently justified intrusive intelligence gathering with the fact that it has produced some useful information in criminal or terrorist investigations. The NSA has aggressively made this point recently, citing contributions to stopping potential threats in New York and elsewhere — an assertion that is subject to some question.

Politicians and law enforcement officials are quick to endorse this rationalization, but it’s a dangerous and slippery slope. By that measure, thumbscrews and universal wiretaps would also produce “useful information” in pursuing terrorists. Instead, the relevant standard should be whether or not intelligence tools and oversight are constitutional and used appropriately. And just because something falls within the bounds of the Constitution does not mean it’s a good idea or without consequence.

For example, it has often been suggested that we should utilize biometric technology -- fingerprints or retina scans -- for all travelers at ports of entry and even domestic airports. It is difficult to argue that such a program wouldn’t “make us safer,” as the expression goes. Eventually some bad guy somewhere would be tripped up. Yet the financial costs would be huge, and the benefits questionable. More important, however, I don’t want to live in a society that tracks my movements this way or that maintains an extensive biometric database on the vast majority of Americans.

To those who consider this example a stretch, consider this: Last year, the State of Maryland used automated readers to monitor and track the location of 85 million license plate images. Yours may have been among them. Dozens of states do the same.

Privacy is the right of law-abiding citizens to say something, or call someone, or go somewhere, without anyone knowing about it. Whether or not that right is explicitly described within the Constitution, most Americans would consider it fundamental to the character of our nation. Regardless of our government’s good intentions, collecting data on every phone call made, accessing the substance of all international communication, scanning every license plate on the highway, or placing surveillance cameras around a city takes away that privacy.

And while all of these activities are designed to make us more secure, even data collection on this scale failed to foreshadow the Arab Spring, stop Benghazi, or prevent extremists from usurping power among Syrian opposition forces.

It may be hard to quantify what is lost as we slowly accept more and government recording and tracking of our everyday behavior. But a government that tells us that “you only need to worry if you are doing something wrong” has taken from us a sense of trust and shared responsibility. If the government treats everyone like a potential terrorist, why shouldn’t you? America should be sure of itself and act with self-confidence — attributes rarely found in the paranoid.

It’s a shame that it took a reckless act like Snowden’s to remind us that the surveillance state’s relentless quest for information will only be tamed if Congress does its job.

Snowden will eventually pay his price, and he should. The documents he leaked have done real damage to our national security. As he frantically negotiates for passage to asylum, our government will attempt to block his progress, and track his every move. (Anyone who has ever been stuck in an airport for just a few hours can delight in the predicament he has been in for weeks on end.)

Good. Perhaps they’ll be too busy to track yours and mine.

John Sununu, a former Republican senator from New Hampshire, wrote this for The Boston Globe.