Simple Tests for Surveillance

The revelations of various National Security Agency (NSA) surveillance programs have led to a discouragingly shallow debate. Putting aside the blindingly obvious conclusion that less surveillance means more successful terrorist attacks, and ignoring the polls that show a majority of Americans support such programs if there is adequate oversight, let us consider some points that critics have overlooked.

The most basic of these is the difference between collection and reading. NSA collects a large amount of traffic. It reads almost none. Computer programs sort through billions of messages to find a few thousand that a human will actually read. The difference between collect and read is usually elided over or ignored in almost all discussion of the issue. Most communications are uninteresting. The rest remain unread. Having a machine examine the strings of ones and zeros that make up digital communication is an abstruse threat to privacy at best. NSA (and the larger U.S. intelligence effort) focuses the bulk of its attention on terrorism, proliferation, and a few hostile countries that threaten the United States and its allies. These are the priorities; there simply are not enough analysts to look at much else.

The simple fact of collection offends many. They assert that privacy is a fundamental right. The right guaranteed in the Universal Declaration of Human Rights is “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence” (Article 12). Privacy is not absolute, interference is permissible if it is not arbitrary, and the antonyms of arbitrary include oversight and constitutional. In this regard, the NSA programs were designed to conform to the laws protecting individual rights.

An appeal to the right of privacy avoids more important issues, however. The drafters of the Constitution did not propose some absolute right to privacy; they (like the drafters of the Universal Declaration) saw privacy as a means to achieve a larger goal, to protect political liberties. This is a vital distinction. Most countries in the world have domestic communications surveillance programs; their scope depends largely on resources available. Many wealthy countries and all “great powers” conduct surveillance of foreign communications—the Internet has been of immense benefit in doing this. Since surveillance is for all practical purposes universal, how should we distinguish among programs?

The key is to focus on political liberty. One critic of the NSA programs pointed out that the collection of metadata could allow the government to track opposition leaders. This is very confused thinking. Was this individual really suggesting that NSA collected data on Republicans and then went and briefed Republican congressional leader on the results? It is unreasonable to suggest that these leaders would have remained passive and quiet if this was occurring.

The essential political rights are freedom of expression and assembly, freedom from arbitrary detention, and the right to petition the government for a redress of grievances. If these four rights are protected, surveillance is immaterial in its effect on civil liberties. Citizens can criticize, oppose, and replace their governments in those countries where such rights are respected. We can quickly sort those countries that use surveillance to suppress political opponents and those that do not. Data is easily obtained by counting politically motivated detentions, censorship, suppression of speech, or coercion of political opponents. None of these have occurred in the United States, or in any of the other Western democracies that engage in broad communications surveillance. Respect for political liberties is the fundamental test for surveillance—the NSA program passes this test.

Effectiveness is another test. One result of the war on terror that began after 9/11 was the creation of new constraints on individuals and expensive new programs that spent billions without reducing risk. Counterterrorism in the United States was often unnecessarily and disturbingly intrusive without positive effect. That cannot be said of the surveillance program, which has successfully blocked a number of attacks. Providing more information on these successes would help increase transparency and provide for a debate that was better informed.

A fundamental test is oversight and transparency. No one accepts that the watchers should watch themselves or authorize themselves to act. The NSA program, approved by the courts and routinely briefed to congressional leaders, passes this test. It appears that strenuous efforts were made to ensure its constitutionality, to minimize any intrusions, and to limit the effect on privacy to that which was necessary for security.

One legitimate area of dissatisfaction would be the lack of transparency for NSA programs. No professional organization—and this includes al Qaeda and Hezbollah—was unaware of the collection efforts. Home-grown amateur jihadis or lone wolves may have been unaware; they will now be more careful and this increases the likelihood of a successful attack. The defense by some senior officials (expressed privately) that the program needs be secret so that the targets of surveillance remain unaware makes no sense. There is a balance between transparency and effectiveness, but this needs to be recast in favor of transparency. Greater insight into the decisions of the Foreign Intelligence Surveillance Act (FISA) Court and the release of FISA submissions that need no longer be kept secret would be appropriate.

Such measures are unlikely to quiet critics, because the critics do not trust Congress, the court, or the executive branch. This is a deeper and more serious problem. A corrosive popular culture that paints government and intelligence agencies as malevolent entities contributes to this, but the larger issue is the erosion of legitimacy and dissatisfaction with government found in countries around the world. Perhaps governments overpromised and cannot meet the expectations of their citizens; perhaps the scope of regulation and services to ensure the public good has become stifling; perhaps the cheerful corruption found in tax policy or subsidies to favored industries has undercut authority. Whatever the reason, distrust of government is increasingly normal for parts of the population, and there is nothing that will persuade them that surveillance is not an ominous threat.

All nations surveil communications. Surveillance reduces risk. This makes it worthwhile if the political risks can be managed and minimized. Respect for political rights, oversight and transparency, and effectiveness are the tests for judging a surveillance program and if those who employ it are defending our rights or abusing them.

James A. Lewis is a senior fellow and director of the Technology and Public Policy Program at the Center for Strategic and International Studies in Washington, D.C.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2013 by the Center for Strategic and International Studies. All rights reserved.

James Andrew Lewis
Senior Vice President; Pritzker Chair; and Director, Strategic Technologies Program