Page 142 - Privacy in a Cyber Age Policy and Practice

130 PRIVACY IN A CYBER AGE

3. The Programs Are Not Effective

A common claim against the NSA programs under discussion, and against
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other national security programs, is that they are not effective. This is a
particularly potent argument for those who oppose these measures because
if the programs are ineffectual, presumably nobody will seek to support
them no matter how little they infringe upon rights. By contrast, if the pro-
grams are proven to be effective, then at least some may begin to wonder if
the associated gain in security does not justify some recalibration of rights.
The government argues that PRISM and the collection of phone com-
pany metadata disrupted fifty-four terrorist plots, one-fifth of which were
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to be carried out within the borders of the United States. However, critics
have questioned these statistics, expressing skepticism about the reliability
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of government officials’ testimony and the adequacy of the thwarted plots
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as a metric of efficacy. Section F addresses the question of how to ensure
the validity of these and other government claims.
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Critics especially wonder about phone surveillance. Some point
out that the program was not the “primary” tool in averting any terror-
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ist attacks, and “would very likely fail a full cost-benefit analysis handily
even only minimally taking into consideration privacy and civil liberties
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concerns.” However, this criticism can be leveled against any program or
instrument used by law enforcement authorities or national security agen-
cies. Surely police cruisers or FBI files or even the U.S. Air Force are often
but instruments that in conjunction with others bring about the required
outcomes.
There are obviously scores of situations in which phone records would
be of obvious help, even if the records alone would not be sufficient to pre-
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vent an attack or to find those who committed acts of terror. When the
authorities caught one of the two Tsarnaev brothers (the pair responsible
for the Boston Marathon bombing), there was reason to suspect that they
were cooperating with others and that they planned more attacks, specifi-
cally in New York City. It does not take a PhD in counterterrorism to realize
that under those circumstances it was very useful to know who the Tsar-
naev brothers were previously in contact with by phone. The same holds
for efforts to find out if the Tsarnaev brothers acted on their own or were
supplied, guided, or financed by overseas sponsors and, if so, by whom.
One telling piece of evidence regarding the effectiveness of electronic
surveillance programs is the fact that they hobbled bin Laden. He found
out that he was unable to use any modern communication device to run
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his terror organizations, which had branches on three continents. He
was reduced to using the same means of communication people used
five thousand years ago—a messenger, which is a very slow, low volume,