Page 148 - Privacy in a Cyber Age Policy and Practice

136 PRIVACY IN A CYBER AGE

collecting and storing records in computers amounts to a search, general
or otherwise—a point next discussed.

4. Computers Don’t Search

A major, indeed critical, feature of the phone surveillance program,
ignored by many critics, is that it merely stores the records and that par-
ticularized suspicion and a court order is required to access and examine
the records of any individual. It is hence important to note that computers
do not violate privacy, although they vastly increase the risk that privacy
might be violated. (How to best address and mitigate that risk is discussed
in Section F.)
Computers do not gossip. They see no evil, hear no evil, and speak no
evil. They do not engage in pillow talk, leak information to the press, or sell
information to the Cubans, Chinese, or anyone else. Hence, those who are
concerned with finding a reasonable balance between security and privacy
should focus on the interface between computers and human agents. That
is, they ought to seek to ensure that once the computers flag particular
individuals this information is revealed only to law enforcement authori-
ties and used by them in legal and accountable ways. For this reason, the
revelation in July 2014 that most intercepted communications do not
belong to legally targeted foreigners and instead belong to U.S. citizens or
residents is of little concern as long as actual analysis of the communica-
tions focuses narrowly on counterterrorism and U.S. communications are
minimized according to law. 114
In short, privacy advocates would have good reason for concern if the
massive collection of records were to include content and if records of who
called whom were to be made available to all comers or even to various law
enforcement agencies. However, if these records are merely collected and
stored so that they will be readily available once a court order is granted for
an individualized search—most of the issue is moot beyond the question
of how to ensure that access to the computers themselves is under tight
surveillance.

5. Keep in Private Hands?

Critics argue that, rather than collect and store phone records in bulk, the
government should wait until it has particularized suspicion and a court
order and then collect the relevant records of that person from the phone
companies. 115 However, both prudential and principled reasons favor the
government position on this point. Most important, phone companies are