Page 160 - Privacy in a Cyber Age Policy and Practice

148 PRIVACY IN A CYBER AGE

F. Accountability vs. Transparency

1. Serious Charges

So far, this chapter has assumed that the two surveillance programs’ main
features are those that have been reported and has not speculated as to
whether the government is actually collecting the content of phone calls
in addition to metadata. One can have some confidence in the information
because it largely emanates not from the government, but rather from
leakers who have proven themselves quite willing to reveal the government’s
flaws and misdeeds. The evidence so far suggests that the government basi-
cally follows the procedures indicated, and, moreover, even liberal critics
have had to admit that there are no specific cases in which an innocent
person was actually harmed by these programs. As the New Yorker’s Hen-
drik Hertzberg has observed, “In the roughly seven years the programs
have been in place in roughly their present form, no citizen’s freedom of
speech, expression, or association has been abridged by them in any iden-
tifiable way. No political critic of the Administration has been harassed or
blackmailed as a consequence of them. They have not put the lives of tens
of millions of Americans under ‘surveillance’ as that word is commonly
understood.” 192
Two very serious specific charges have been leveled against the NSA.
One concerns reports that the NSA often failed to comply with the laws
that are supposed to govern its operations. 193 “For several years, the
National Security Agency unlawfully gathered tens of thousands of e-mails
and other electronic communications between Americans” via “upstream”
collections, which is a program authorized by Section 702 of FISA. This
program is distinct from both PRISM and the phone surveillance program. 194
However, such violations bring into question the extent to which the NSA
can be trusted to heed the law. Along similar lines and in contrast to state-
ments by President Obama and other public figures that the NSA has never
195
abused its powers, such abuse has occurred on a small scale. In addition to
the aforementioned violations of procedure, which were mostly uninten-
tional, the chairman of the House Intelligence Committee has stated that
“approximately a dozen” cases of “willful violations” have been uncovered
over the last decade involving “improper behavior on the part of individual
[NSA] employees,” 196 most of which involved surveillance of love interests.
In response to this controversy, Senator Dianne Feinstein (D-CA), chair
of the Senate Intelligence Community, argued that while “any case of non-
compliance is unacceptable [. . .] the NSA takes significant care to prevent
any abuses and that there is a substantial oversight system in place.” 197 And
the former deputy director of the CIA likewise asserted that there “has