Page 166 - Privacy in a Cyber Age Policy and Practice

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does not, for example, want to impose procedures like those that prevented
the FBI from setting up a sting operation to capture Tamerlan Tsarnaev,
one of the Boston Marathon bombers. According to U.S. officials, a sting
operation can only be undertaken if there is “evidence that someone is
already contemplating violence”—an evidentiary threshold that Tsarnaev’s
activities did not pass before he bombed the Boston Marathon and that
prevented the FBI from sharing relevant information about the terrorist
brothers with the Boston police department. 232 The liberal communitarian
balance can be lost both by moving in the direction of too much security
and by imposing too many limitations on security. Indeed, oversteering in
one direction often leads to overcorrections in the opposite one.
The Privacy and Civil Liberties Oversight Board, an independent, bipar-
tisan executive branch agency established in line with the Implementing
Recommendations of the 9/11 Commission Act of 2007, can play such a
role. So far, the board has released two major reports relating to the leaked
NSA programs. The first, which was released in January 2014, recom-
mended discontinuing the bulk metadata program on the grounds that its
performance to date did not justify its “significant ramifications for privacy
and civil liberties.” 233 By contrast, the second, which was released in July
2014, recommended maintaining PRISM because it has “proven valuable
in the government’s efforts to combat terrorism” and contains “reasonably
designed” minimization procedures and precautions against “illegitimate
purposes,” though with minor reforms to safeguard privacy and civil liberties
interests. 234 Privacy advocates and others such as the American Library
Association, American Civil Liberties Union, and the Center for Constitu-
tional Rights, however, criticized these recommendations as too limited. 235

G. The Coming Tyrant?

A common claim among civil libertarians is that, even if government sur-
veillance programs are presently inflicting little harm, the infrastructure is
in place for a less-benevolent leader to violate the people’s rights and set us
on the path to tyranny. For example, it has been argued that PRISM “will
amount to a ‘turnkey’ system that, in the wrong hands, could transform the
country into a totalitarian state virtually overnight. Every person who val-
ues personal freedom, human rights and the rule of law must recoil against
such a possibility, regardless of their political preference.” 236 Similarly, The
Atlantic’s Conor Friedersdorf argued that, thanks to PRISM and the col-
lection of phone records, “the people in charge will possess the capacity
to be tyrants— to use power oppressively and unjustly—to a degree that
Americans in 1960, 1970, 1980, 1990, or 2000 could’ve scarcely imagined.”
He further emphasized that “it could happen here, with enough historical