Page 167 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 155

amnesia, carelessness, and bad luck.” 237 And Senator Rand Paul (R-KY) has
been “careful to point out that he is concerned about the possible abuses
of some future, Hitler-like president.” 238 In less alarmist fashion, Center
for Constitutional Rights attorney Shayana Kadidal warns that if “judges,
members of Congress and other elected officials [are not] exempted from
NSA surveillance,” the “chilling effect” of the NSA’s access to confidential or
embarrassing information on them would threaten to “corrupt the political
process.” She points to the practices of J. Edgar Hoover during his time as
director of the FBI as a cautionary example. 239 A few things might be said
in response.
First, all of the data that the government is collecting is already being
archived (at least for short periods, as discussed earlier) by private corporations
and other entities. It is not the case that PRISM or other such programs
entail the collection of new data that was not previously available to the
government through a subpoena.
Second, if one is truly concerned that a tyrant might take over the
United States, one obviously faces a much greater and all-encompassing
threat than a diminution of privacy, and the response has to be similarly
expansive. One can join civic bodies that seek to shore up democracies;
or work with various reform movements and public education drives;
or join groups that prepare to retreat to the mountains, store ammuni-
tion and essential foods, and plan to fight the tyrannical forces. But it
makes no sense to oppose limited measures to enhance security on these
grounds.

Conclusion

Revelations about two surveillance programs—the one that collects the
phone records of Americans, and the one that collects digital communica-
tions by foreigners overseas—should be assessed by drawing on a liberal
communitarian paradigm that seeks a balance between security and privacy
(and other individual rights). Such an evaluation shows that we do face a
significant terrorist threat, hence the continued need for enhanced security;
that this threat cannot be mitigated by dealing with terrorists as criminals;
and that the government reports that the programs are effective.
At the same time, the means used to conduct surveillance of Americans
are either not intrusive or only minimally intrusive. Records need be col-
lected because otherwise they are not maintained or are not readily accessible.
Computers that store these records do not, per se, violate privacy. Before
any individual’s records can be searched, probable cause must be estab-
lished. In short, the program seems to qualify on both constitutional and
legal grounds. And the program that conducts surveillance of foreigners